SZDBZ v Minister for Immigration
[2006] FMCA 890
•12 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDBZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 890 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| 1951Convention relating to the Status of Refugees 1966 Protocol relating to the Status of Refugees Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 91X, 424A, 483A |
| Chan Yee Kin v Minister for Immigration (1989) 87 ALR 412 Dranichnikov v Minister for Immigration [2003] HCA 26 Paul v Minister for Immigration (2001) 113 FCR 395 SAAP v Minister for Immigration [2005] HCA 24 SZEEU v Minister for Immigration [2006] FCAFC 2 Tin v Minister for Immigration [2000] FCA 1109 VAF v Minister for Immigration (2004) 206 ALR 471 VBAP of 2002 v Minister for Immigration [2005] FCA 965 |
| Applicant: | SZDBZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG833 of 2004 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 10 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Patel |
| Counsel for the Respondents: | Ms S A Mason |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent should be amended to read Minister for Immigration and Multicultural Affairs.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG833 of 2004
| SZDBZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 22 March 2004 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 20 February 2004 and handed down on 11 March 2004, affirming a decision of the delegate of the first respondent made on 25 August 2001, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZDBZ”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party to these proceedings: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of L. Nicholls, reference N03/47304, contains the following background information. The applicant, who claims to be a citizen of India, arrived in Australia on 3 April 2001. The applicant applied to the Department of Immigration for a Protection (Class XA) visa on 10 May 2001. A delegate of the Minister refused to grant the protection visa. A differently constituted Tribunal affirmed the delegate’s decision on 27 September 2002. The applicant sought review of the first Tribunal’s decision by this Court on 30 July 2003 before Scarlett FM, who found that the first Tribunal had not properly considered all the applicant’s claims, in particular his claims of past harassment and discrimination at the hands of Hindus and the difficulties he would face if he were to relocate. His Honour set aside the decision and remitted the matter to the Tribunal to be determined according to law.(Court Book (“CB”) 86)
The applicant was born and educated in Bangalore, Karnataka. At the time of his application, he was 35 years of age. The applicant speaks English and Tamil. He describes his occupation as “marketing manager” and gives a history of his employment. Further that he is married and that his wife lives in India. The applicant claims he is a Roman Catholic, born in an area occupied predominantly by Hindus. He claims that he suffered discrimination and persecution because of his religious beliefs. In 1997, he travelled to Saudi Arabia to work. He claims that on 24 June 1999, he married a Hindu woman because her relatives promised him there would be no problems following their union. However, even before the marriage took place, her relatives insisted that the marriage would take place in a Hindu temple with a ceremony afterwards in a Catholic church, to which the applicant agreed. Once the Hindu ceremony ended, relatives of his wife and their friends who were supporters of “Sivasene” (a fanatic religious cult) chose not to attend the church ceremony. Therefore the applicant went to the church for prayers without his wife. His relatives were disturbed by this and advised him to terminate the marriage. He was upset by his wife’s conduct and discussed the matter with her the following day. He and his wife argued and she insisted that he go through a number of Hindu ceremonies, including the drinking of holy Hindu water before the first night of the honeymoon. On the first night of the marriage, his wife told him she had made a mistake and she should have married a Hindu. The applicant’s wife claimed that members of Sivasene were willing to marry her to a Hindu to “protect God’s order”. The applicant immediately returned to the Middle East and the couple continued to speak to each other by telephone. His wife told him that her relatives did not like his religion, race or caste. She told him if he changed his religion there would be no further problem.
Relatives from both sides of the families became involved in the disagreement between couple. It was agreed finally that the applicant would follow his religion, but not keep a Bible in the house. While he was holidaying at home with his wife, there were further ceremonies performed to purify him. He was made to eat a clay substance after which he fell ill and vomited.
The following day, the applicant went to a relative’s home to stay. On the second day he was kidnapped by people from Sivasene who interrogated him and asked if he had any links with overseas Christian organisations. They told him he should convert to Hinduism as he would not be allowed to raise Christian children on holy soil. He was warned that they had killed Christians before and would kill him if he did not convert, or if he went to the police. He was beaten and left outside his wife’s home. Despite the warning, the applicant reported the incident to the police, who told him that Sivasene followers could not be arrested. The police also told him that any more complaints by him would result in gaol. The applicant claims that the police told the Sivanese that he had made a police complains which angered them. The Sivanese looked for him at his wife’s house but the applicant was not there.
The applicant left the country immediately once he became aware that his life was in jeopardy. He returned to the Middle East and hired a lawyer to commence divorce proceedings.(CB 89-90)
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons was contained in the respondents’ written submissions prepared by Ms Mason and I adopt the following paragraph for the purposes of this judgment:
6. The Tribunal:
(a) Accepted that the applicant is a citizen of India (CB 101.7).
(b) Accepted that the applicant is a Roman Catholic and grew up as part of a Roman Catholic Family in Bangalore (CB 102.6).
(c) Did not accept that the applicant had met and married a girl from a high caste Brahmin Hindu family in 1999 (CB 102.7).
(d) Found that the applicant’s evidence as to how he met his alleged wife and that they married to be completely implausible (CB 102.8).
(e) Noted that the applicant had not supplied the Tribunal with documents (either copies or originals) which supported the alleged marriage and that this was a matter the Tribunal would have excepted could have been obtained easily from India or from the applicant’s lawyer (CB 103.2) (who the applicant claimed at hearing to be in contact with (CB 91.5)).
(f) By reason of its finding as to the non-marriage, and based upon evidence given by the applicant at hearing, the Tribunal did not accept that divorce proceedings were on foot (CB 103.3).
(g) Found the applicant’s evidence as to the alleged divorce to be vague, generalised and lacking in the kind of detail expected of someone who had been instructing a lawyer in legal proceedings (CB 103.4).
(h) By reason of its non-acceptance of the marriage, the Tribunal did not accept that upon return to India, the applicant had visited the girl’s home town and had been forced to undergo Hindu ceremonies or threatened (CB 103.8).
(i) Found that the Applicant would not face a real chance of persecution in India by reason of his religion given, having regard to independent country information evidencing that India is a secular State, and a lack of evidence that the Indian national or state government has engaged in persecutory conduct against Christians (CB 105.3).
(j) Found that there a number of extremist Hindu organisations, including Shiv Sena and the RRS, have been implicated in incidents of rioting and violence (CB 105.5).
(k) Found that India has laws prohibiting assault and violence, functioning agencies of law and order and an independent judiciary. In addition, and by reference to independent country information, the Tribunal accepted that despite occasional incidence of violence, relations between religious groups are generally amicable and the government supports interfaith tolerance (CB 105.8).
(l) Considered the situation facing the applicant should he return to his home in Bangalore (in the State of Karnataka) and found that he would not face any risk of harm upon return by reason of its previous findings as to the social and political climate in India (CB 105.9).
(m) Found that if the applicant faced threats of harm from member so extremist Hindu groups (CB 106.1).
Application for review of the tribunal’s decision
On 22 March 2004, the applicant filed an application for review under s.39B of the Judiciary Act. This application contained no grounds of review. An affidavit sworn on the same date was also filed, which contained a copy of the Tribunal decision. On 26 July 2004, the applicant filed an amended application. On the same date, the applicant filed an affidavit which contained the following grounds:
1. The RRT made a jurisdictional error in that it failed to determine my application in accordance with correct law and in accordance with its mandate in as much as the RRT misconstrued and misapplied the definition and notion of “persecution” and “well founded fear” for the purpose of article 1A(2) of the 1951 Convention Relating to the Status of Refugees.
Particulars
At the previous hearing all of my claims relating to the persecution I had endured and the threat of harm made to me were accepted and the only issue was whether State protection was available to me. The Tribunal Member L Nicholls rejected those claims by insisting and seeking proof verging on proof beyond any doubt.
The Tribunal Member L Nicholls applied the erroneous test whether I could avoid persecution by hiding away from those who targeted me for persecution. This is apparent from his interrogation “I put to him that India had a large population and it was implausible that local members of the Salem RSS would be seeking him out through out India”.
“The RRT relied on country information regarding the change of government in State of Karnataka to speculate that I would not suffer persecution if I returned to India.
2.The RRT made a jurisdictional error and failed to determined my application in accordance with law and in accordance with its mandate in as much as it failed to apply the correct subjective and objective test of my fear to determine whether my fear was well founded to satisfy the requirements of article 1A(2) of the Convention Relating to the Status of Refugees.
Particulars
The RRT applied wrong test to determine whether I had a well-founded fear of persecution. The RRT did not take into account my subjective experience in the context of the activities of Shiv Sena. The RRT accepted that extremist Hindu organisation in India Have engaged in incidents of communal and religious rioting and violence and the State government have failed to provide protection. The RRT failed to ask the question in the context of that information what were my chances of encountering persecution and in light of my past experience whether my fear was well founded?
3.The RRT denied procedural fairness and Natural justice in reaching its decision.
Particulars
At the first hearing all my evidence and claims made by me were accepted but my claim for protection was rejected because the Tribunal concluded that could avoid persecution by relocating in some other part of India. The matter was remitted because the Tribunal had not considered that issue as required by law. I was informed by the RRT that it had reach and considered all the material including the decision of the previous Tribunal. I was not told to produce any documents regarding my marriage or my divorce or any other document. I believed there was no issue regarding any other aspects of the matter other than the issue of relocation was not represented at the hearing by my agent and I had told Tribunal that I had made arrangement with him to represent me. I did not have any documents nor did I know what I was supposed to have with me as I had relied on my agent. The RRT drew wrong and incorrect critical conclusions regarding the status of my marriage and divorce. I had the documents and would have produced the documents if I were given the opportunity to produce the documents. (copied without alteration or correction)
Reasons
Mr J Patel of counsel appeared for the applicant at the hearing. Mr Patel prepared written submissions, which were handed up in Court at the commencement of the hearing. Unfortunately, the outline of submissions did not advance the applicant’s grounds but predominately repeated the matters outlined by the applicant’s affidavit filed with the amended application. In respect of the first ground, Mr Patel submits that the applicant claims that evidence given by him was accepted by the member at the first Tribunal hearing. Mr Patel argues that in essence the first Tribunal accepted that the applicant was a truthful witness. However, the second Tribunal as reconstituted by L. Nicholls rejected all of the claims made by the applicant on the ground that they were fabricated.
Mr Patel argues that the Tribunal erred in seeking that the applicant satisfy the Tribunal beyond a reasonable doubt and in failing to give the applicant the benefit of the doubt. It is argued that the matter was remitted to the Tribunal to consider issues that were not considered in accordance with law and the reconstituted Tribunal erred in not confining its attention to matters that required consideration. Further, the Tribunal erred in holding that all the claims advanced by the applicant were fabricated simply because he did not produce documents at the hearing which the Tribunal expected would have been produced. Mr Patel contends that the Tribunal imposed a burden of strict proof on the applicant and did not give him the benefit of reasonable doubt.
Ms Mason, for the respondents, in her written submissions, submits that the rejection by the Tribunal of the applicant’s claims was open to it on the basis of the evidence before it. There is no error in the Tribunal being reconstituted and hearing the matter de novo, as alleged by the applicant. It is inherent in a hearing de novo that the Tribunal would make its own fresh factual finding. Ms Mason submits:
a)The applicant must satisfy the Tribunal of the criteria in s.36(2)(a) of the Act:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;…
b)The applicant was told at the outset of the reconstituted Tribunal hearing that the member would do the following (CB 91.1):
I outlined the procedural history of the matter to the applicant and explained that I would consider his claims afresh.
Ms Mason submits that the fact that the Tribunal came to a different conclusion about the plausibility of the applicant’s evidence, or his credibility, is not indicative of jurisdictional error.
The second complaint in the particulars to the first ground, the applicant claims that the Tribunal member applied an erroneous test, which was whether the applicant could avoid persecution by hiding from those who targeted him for persecution. Ms Mason submits that the Tribunal’s actual finding was that the applicant could relocate (CB 94.6):
I put it to him that India had a large population (approx 1 billion) and it was implausible that local members of the Salem RSS would be seeking him out throughout India over a local and domestic matter. Further he had been away from India for a very long period of time.
Ms Mason submits that it is an entirely valid and orthodox comment to make, in the context of discussing with the applicant the viability of relocation.
The third complaint raised by the applicant in the particulars to the first ground was that the Tribunal relied on country information regarding the change of government in Karnataka when determining whether the applicant would be likely to suffer persecution if he returned to India. Ms Mason submits that such information comes squarely within the ambit of the exception in s.424A(3)(a) of the Act. I agree with the submissions of Ms Mason. The issues raised by the applicant in ground one and its supporting particulars do not support a claim of jurisdictional error.
In the second ground, Mr Patel submits that the Tribunal erred by failing to examine facts and circumstances which existed at the time of the protection visa application, and whether he had a well-founded fear of persecution at the relevant time. In addition, the Tribunal erred in applying the test for ‘well-founded fear of persecution’, in so far as it failed to consider the possibility that the applicant may suffer persecution in the reasonably foreseeable future. Mr Patel further submits that the Tribunal erred when it considered the protection visa application in the context of the changed political climate in India, rather than in the entire context from when the applicant applied for a protection visa and the change in the circumstances since the date he made his application.
Ms Mason, in her written submissions, submits that the Tribunal did apply the correct legal test to whether or not the applicant had a well-founded fear of persecution. The second ground was that the Tribunal failed to consider whether the applicant held a well-founded fear of persecution by reason of his experiences with the Sivasene. A claim that was raised by the applicant’s post-hearing submissions to the Tribunal. Ms Mason submits that the Tribunal’s finding was on the basis of the material before it and that even if the applicant did face a real chance of persecution by Sivasene, he had access to reasonable and effective state protection.
Mr Patel contends that the Tribunal erred in law and failed to apply the law as it was required to do in its application of the “test of well-founded fear of persecution”. Section 36(2) of the Act, directs that the Tribunal’s attention to the criteria that it be satisfied that the applicant is a non-citizen of Australia to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended, by the 1966 Protocol relating to the Status of Refugees. In essence, the Tribunal needs to be satisfied that the applicant was a refugee as defined in Article 1A(2) of the Convention which involves, amongst other elements, a consideration of whether the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal set out the ‘test for well-founded fear of persecution’ in the early part of its decision, referring in particular to Chan Yee Kin v Minister for Immigration (1989) 87 ALR 412 per Dowsett J. The elements of well-founded fear contain both a subjective and objective requirement. There must be “a state of mind – fear of being persecuted and a basis – well-founded – for that fear. Whilst there must be fear of being persecuted, it must all not be in the mind, there must be a sufficient foundation for that fear”: Chan Yee Kin v Minister for Immigration at 423.
Mr Patel contends that the Tribunal misapplied the “test of well-founded fear” specifically by reason of the applicant’s experiences with the Sivasene, which was detailed in his post-hearing submissions to the Tribunal. The Tribunal member states this after carefully considering the country information relating to the claims made by the applicant about persecution of Christians in India (CB 105):
I find that the applicant does not face a real chance of persecution from government authorities for the reasons of religion. The country information indicates and I accept that India is a secular state, a longstanding democracy with constitutional guarantees of freedom of religion and other human rights. There is no evidence available to the Tribunal which indicates that either the national or state governments have engaged in persecutory conduct against persons for reasons of their Christian religion.
I find that there are a number of extremist Hindu organisations in India which have been implicated in incidents of communal and religious rioting and violence. These organisations include the RSS and the Shiv Sena mainly operates in the state of Maharashtra and promotes Marathi and Hindu interests in that state. The RSS and other Hindu organisations are based throughout India and promote Hindu dominance in Indian culture, politics and ideals.
I find that the government of India has; laws which prohibit assault and violence, functioning agencies of law and order and an independent judiciary. India also has laws which prohibit violation of religious tolerances and discrimination on religious grounds. The national government which is controlled by a BJP led coalition has expressed its strong commitment to these secular ideals and condemned those engaged in religious intolerance and violence.
I accept the submissions made by Ms Mason, that the Tribunal’s findings were based upon the material before it. I am not satisfied that the Tribunal erred in the manner as suggested by Mr Patel. This ground cannot be sustained.
In the third ground, the applicant claims he was denied procedural fairness and natural justice by the Tribunal. Mr Patel relies on the particulars and submits that the applicant was disadvantaged by double jeopardy. Also that the applicant was disadvantaged in not being served with a notice to produce particular documents that were required by the Tribunal, especially as the documents did not relate to a live issue which had not been considered by the Tribunal in accordance with the law.
Ms Mason, in her written submissions, submits that the function of the Tribunal is to respond to the case advanced before it by the applicant: Dranichnikov v Minister for Immigration [2003] HCA 26 at [78] per Kirby J. Ms Mason submits that the Tribunal does not have an obligation to make an applicant’s case for him. It is not obliged to instruct the applicant as to what documents to bring that may be of assistance to him at the hearing. Ms Mason further submits that there was a discussion between the applicant and the Tribunal about these documents, their location and the applicant’s ability or failure to obtain them. Had the applicant wished, he could have either requested time to provide the documents or done so in a post-hearing submission. The member noted that the applicant did not supply the Tribunal with either the original or a copied marriage document. The member also stated that she thought that such documents would be easily obtained from the Indian Registry of Births and Marriages, or from the lawyer who claimed to be handling the applicant’s divorce. The Tribunal made the following observation (CB 103.4):
His evidence was vague and generalised and lacking in the sort of detail which would be recalled if he had; instructed a lawyer in India, discussed his divorce proceedings with his lawyer; and had received and signed documents relating to the divorce application. He did not recall the grounds for divorce; the last name of his lawyer, the nature of the documents received and did not keep a copy of any of those documents. As I would have expected a reasonably well educated person to have knowledge of these matters and keep or be able to locate such documents I find that the applicant has fabricated this evidence and that he has not made an application for divorce in India.
Ms Mason submits that the member’s view about the absence of corroborative evidence was arguably a thought process which did not constitute information and was therefore not required to be put to the applicant: SZEEU v Minister for Immigration [2006] FCAFC 2 at [65] per Moore J and at [206] per Allsop J (citing Tin v Minister for Immigration [2000] FCA 1109 at [54], Paul v Minister for Immigration (2001) 113 FCR 395 at [95] and VAF v Minister for Immigration (2004) 206 ALR 471 at [24]).
Ms Mason submits that the issue of the marriage or divorce documentation was not such that formed the reason or part of the reasons for the Tribunal’s decision. Ms Mason submits that the findings in respect of credibility contained a number of separate bases upon which the Tribunal was not satisfied. That is so even though the marriage or divorce documentation issue did inform part of the Tribunal’s overall assessment of the applicant’s credibility. In VBAP of 2002 v Minister for Immigration [2005] FCA 965 at [33], North J stated:
As referred to earlier in these reasons, there were four independent bases for the decision of the Tribunal in this application. There was no challenge to the second basis of the Tribunal’s decision and I have rejected the challenges to two of the other bases. SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported.
This is a similar finding to that of Allsop J in SZEEU v Minister for Immigration at [233]. Each of the other reasons of the Tribunal was an independent reason which did not require s.424A notification and was sufficient to justify an adverse credibility finding.
Ms Mason submits that even if the Tribunal did err in respect of not putting such a matter to the applicant for comment in accordance with s.424A, the decision contained at least one separate and independent basis, namely, the Tribunal found that the applicant could avail himself of effective state protection. Ms Mason submits that his would have been a sufficient basis for withholding relief: SZEEU v Minister for Immigration per Allsop J at [233].
Conclusion
I am not satisfied that any of the grounds identified in the application and argued by Mr Patel on behalf of the applicant can be sustained. I accept the submission of Ms Mason that no jurisdictional error can be identified and sustained on the basis of the grounds of review raised in the application, or on a review of the material contained in the Court Book and the Tribunal decision. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 4 July 2006
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