SZDHU v Minister for Immigration
[2006] FMCA 1861
•19 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDHU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1861 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. – status – refugee status – refusal – visa – protection visa. |
| Migration Act 1958, ss.91X, 474, 477 Migration Legislation Amendment (Judicial Review) Act 2001 Jurisdiction of the Federal Magistrates Service Legislation Amendment Act2001 |
| A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 56 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZDHU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1103 of 2004 |
| Judgment of: | Cameron FM |
| Hearing date: | 28 November 2006 |
| Date of Last Submission: | 28 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2006 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr G. Kennett |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1103 of 2004
| SZDHU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 7 October 2004, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) dated 19 December 1996 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 18 October 1994 refusing the applicant’s application for a protection visa. The proceedings were commenced by an application filed on 15 April 2004.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
This matter was originally heard by Nicholls FM earlier this year. However, after the adjournment of the matter to receive further submissions, correspondence was discovered in the Minister’s department which raised the possibility that his Honour, when a senior officer in that department, may have had some dealings with the applicant’s file. Consequently, and following correspondence with the parties, his Honour disqualified himself from further involvement in this matter. The matter has been re-argued before me.
Background facts
The applicant is a citizen of India who claims to fear persecution in India because she is of the Muslim religion
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 to 6 of the Tribunal’s decision (Relevant Documents (“RD”) bundle pages 107-109) Relevantly, they are in summary:
a)The Applicant was married and lived principally in Bombay before coming to Australia. She referred to incidents of looting and raping which had occurred in Bombay while she was living there.
b)The Applicant said that after returning to Bombay following a period in Bangalore there were times when she and her family were unable to attend the mosque because of disturbances caused by Hindus. She recalls this occurring on two or three occasions.
c)
The Applicant’s husband gave evidence to the Tribunal and said that he feared religious problems if they return to India.
He believes that Hindus do not want Muslims and that there are riots between Hindus and Muslims from time to time.
He explained that these things continue to go on and there can be no guarantee that the family would be safe. He fears such events may recur if the family returned to India.
d)Subsequent to the hearing the Applicant sent to the Tribunal a written statement indicating that as a Muslim she was the victim of abuse and unable to practise her religion properly. She claimed to fear for her life and that she may be raped. She believes she has been downgraded and abused because she is Muslim, even though she is well-educated. She does not feel safe in India and does not believe that the government will protect her. She fears for her children should they return to India. She believes that if the family move in India they will be the targets of the police and will have to learn new dialects.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found it was not satisfied that the applicant is a person to whom Australia has protection obligations. The Tribunal’s decision was based on the following findings and reasons:
a)the difficulties which the applicant might have in re-settling in India were unexceptional and did not form the basis of a well-founded fear of persecution;
b)the Tribunal had considerable doubt whether the past harms which the applicant claimed to have suffered in India as a result of tensions and communal violence between Hindus and Muslins in fact occurred;
c)a fear that generalised communal violence may at some point in the future affect a person does not constitute a well-founded fear of persecution;
d)while there may be violence between Muslim and Hindu communities in India in the future, the violence is of such a sporadic and unpredictable nature that the fear of it in general terms does not constitute a well-founded fear of being persecuted as required by the Convention.
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)the applicant was denied natural justice in that when making a finding on the applicant’s credibility the Tribunal considered country information without permitting her to comment on it;
b)the applicant was denied natural justice in the Tribunal’s making of a finding on her claim to have a well-founded fear of persecution for Convention reasons;
c)the country information relied on by the Tribunal was not tested or justified;
d)the applicant and her family are well integrated into the Australian community
e)the Tribunal did not accept that the applicant might become a victim in India; and
f)the Tribunal ignored or overlooked:
i)the applicant’s statement;
ii)the harm she would face;
iii)the consequences “of violence which occurred in India”;
iv)the impossibility of relocation in India.
During the course of the hearing before Nicholls FM a question arose whether the applicant had an additional ground on which to seek review of the Tribunal’s decision, namely that the Tribunal had not considered whether the applicant had a well-founded fear of persecution based on her membership of a social group defined as Muslim women. His Honour adjourned the matter in order that submissions could be filed which dealt with this issue.
Dealing in turn with the grounds advanced in the amended application and with the additional “social group” ground:
The applicant was denied natural justice in that when making a finding on the applicant’s credibility the Tribunal considered country information without permitting her to comment on it
A consideration of the Tribunal’s findings and reasons reveals that it arrived at no conclusions in relation to the applicant’s credibility.
At page 8 of its decision (RD 111) the Tribunal did express “considerable doubt” concerning whether adverse events claimed by the applicant to have occurred to her in India did actually occur. The Tribunal referred to instances of contradictory evidence on certain issues, most notably when it compared the applicant’s claim that her family home was burnt down with her husband’s inability to remember this until reminded of it. (RD 112)
The Tribunal’s comment was:
These issues, which are clearly relevant to the Applicant’s claims and fear of return, leave some doubt in the Tribunal’s mind as to whether the Applicant may not have been exaggerating her past experiences for the purpose of advancing her claim to refugee status. (RD 112)
However, no finding on the applicant’s credibility was made, adverse or otherwise.
The applicant was denied natural justice in the Tribunal’s making of a finding on her claim to have a well-founded fear of persecution for Convention reasons
This ground is not particularised and appears to be an attempt at an impermissible merits review. The applicant does not suggest in relation to this ground that there were shortcomings in the hearing or that the Tribunal approached the application in anything other than a disinterested and dispassionate way. This ground suggests that the justice of the matter required a different outcome but this Court is not permitted to revisit the Tribunal’s findings in proceedings for judicial review such as these: A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 56.
The country information relied on by the Tribunal was not tested or justified
This ground does not identify any actual deficiencies in the evidence which was considered by the Tribunal but in any event is based on a disagreement with the Tribunal’s fact finding. As the Full Court of the Federal Court said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]:
There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
The applicant and her family are well integrated into the Australian community
This is not a ground which forms a basis for judicial review of the Tribunal’s decision. Moreover, when considering whether the applicant has a well-founded fear of persecution upon a return to India, it is not relevant that she has successfully integrated into Australian society.
The Tribunal did not accept that the applicant might become a victim in India
This ground seeks a merits review of the Tribunal’s decision and, in any event, misconceives the test which the Tribunal had to apply. The question before it was not the possibility that the applicant might “become a victim” upon return to India but whether she had a well-founded fear of persecution for a Convention reason. Although the Tribunal accepted that communal violence in India existed and would probably exist in the future, it was not satisfied that this possibility would amount to persecution of the applicant. Indeed, even were the Tribunal to have accepted that the applicant might fall victim to such communal violence in the future, without more, the applicant would not be entitled to succeed in her application.
The Tribunal ignored or overlooked:
(a) the applicant’s statement
This assertion is not correct. The letter dated 7 December 1996 (RD 51) which the applicant supplied to the Tribunal following the conclusion of its hearing is expressly discussed in the fifth full paragraph on page 6 of its determination (RD 109). The Tribunal does not specifically draw on the document in its “Conclusion” but the fact that it did not is not a jurisdictional error. It is for the Tribunal to determine which evidence it accepts and the weight it is to give to the evidence before it.
(b) the harm she would face
The Tribunal did not omit consideration of the harm which could befall the applicant or any other person in India as a result of the underlying religious tensions between the Hindu and Muslim communities in that country. However, the applicant failed to convince the Tribunal that any fear of harm which she might have was a well-founded fear of persecution for a Convention reason. It is not sufficient that the applicant might have a well-founded fear of meeting certain risks in her home country. Those risks have to amount to persecution for a Convention reason before the applicant will be considered to be a refugee.
(c) the consequences “of violence which occurred in India”
Again, the Tribunal did consider the consequences of violence in India and the considerations which apply to the previous ground apply equally to this one.
(d) the impossibility of relocation in India
Unless the applicant had satisfied the Tribunal that she had a well-founded fear of persecution for a Convention reason, there was no necessity for it to consider this issue. For this reason, any want by the Tribunal of consideration of this issue does not amount to a jurisdictional error.
Persecution by reason of membership of social group represented by Muslim women
The applicant has a stated fear of personal violence if she returns to India. In her written and oral submissions to this Court as well as in her letter to the Tribunal dated 7 December 1996, the applicant stated her fear of rape were she to return to her home country. This fear suggests that her fear lies not solely in being a Muslim but, more specifically, in being a female Muslim.
In respect of this possible ground, I adopt the following passages from the Minister’s supplementary submissions:
4. The Applicant’s assertion that she faced a particular form of harm “as a Muslim woman” had not been raised previously, and was not further developed. She did not argue, and the evidence she put forward did not indicate, that any group in India would single her out for harm as a Muslim woman, as distinct from a Muslim. Rather, she identified a particularly severe form of harm that might befall her if, as she feared, she was attacked because of her religion: she feared rape “as a Muslim woman”, but she claimed to have been “targeted” “as a devout muslim”. The Tribunal’s summary of the claim was not inaccurate.
5. The asserted fear of harm as a Muslim woman therefore did not add anything, from a Convention point of view, to the Applicant’s claim of religious persecution.
(a) It did not identify a distinct Convention nexus (i.e. membership of a “particular social group”; or a reason why the Applicant was at greater risk of persecution than other Muslims).
(b) A fear of being raped would add a degree of seriousness which, in other circumstances, might be necessary to establish a fear of “persecution”. However, the Tribunal had accepted that those caught up in communal violence faced harm which was “tragic”. Seriousness was not lacking.
6. The assertion therefore did not form an “integer” of the Applicant’s claims. It was not, in itself, “a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason”. At most, it was a piece of (relevant, but not critical) evidence about the seriousness of the harm that was feared.
7. The assertion was dealt with by the Tribunal’s analysis of the basis upon which harm (including, it was accepted, serious harm) might befall the Applicant: as an “incidental”, “sporadic” and “unpredictable” consequence of violence between the Hindu and Muslim communities; not as a result of the kind of “systematic” conduct that is a necessary element of Convention persecution.
Delay
The respondent has submitted that the applicant’s delay of some years in bringing these proceedings should result in the application being dismissed, whether pursuant to s.477 of the Act or in the exercise of the Court’s discretion.
Amongst other sections, the Migration Legislation Amendment (Judicial Review) Act 2001 inserted ss.474 and 477 into the Act. Section 477 was amended by the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act2001 which inserted s.477(1A).
At the relevant time s 477 relevantly provided:
(1A)An application to the Federal Magistrates Court under section 483A for:
(a) a writ of mandamus, prohibition or certiorari; or
(b) an injunction or a declaration;
in respect of a privative clause decision in relation to which the jurisdiction of the Federal Magistrates Court is not excluded by section 476 must be made to the Federal Magistrates Court within 28 days of the notification of the decision.
For the reasons set out above, I am of the view that the Tribunal’s decision is not affected by jurisdictional error with the result that it is a privative clause decision. Because of this the application will be dismissed.
My conclusion that the Tribunal’s decision is a privative clause decision has the consequence that if the application to this Court was made more than 28 days after the decision was notified to the applicant, then the application to this Court was made out of time.
The evidence before the Court, such as the chronology annexed to the applicant’s affidavit sworn 15 June 2006 (and which is also attached to her outline of submissions dated 14 June 2006) or the elliptical letter from the applicant to the Minister’s predecessor which is annexure A to the affidavit of Angela Margaret Nanson sworn 15 June 2006, is not as clear or comprehensive as it might have been. Nevertheless I am satisfied that the applicant was notified of the Tribunal’s 1996 decision more than 28 days prior to the commencement of these proceedings in 2004. On this basis as well the application will be dismissed.
Conclusion
The applicant has failed to demonstrate jurisdictional error on the part of the Tribunal and her application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate: Parisra Thongsiri
Date: 19 December 2006
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