SZDWG v Minister for Immigration
[2005] FMCA 881
•29 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDWG & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 881 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.36(2)(a), 65, 91R, 91X, 474
Judiciary Act 1903 (Cth), s.39B
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Chan Yee Kin v Minister for Immigration & Ethnics Affairs (1989) 169 CLR 379
Ibrahim v Minister for Immigration & Multicultural Affairs (2000) 204 CLR 1
Perampalam v Minister for Immigration & Multicultural Affairs (1999) 55 ALD 431
Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437
| Applicants: | SZDWG & SZDWH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1877 of 2004 |
| Delivered on: | 29 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 1 June 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicants: | Mr G Pesce |
| Counsel for the Respondent: | Mr R J Bromwich |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1877 of 2004
| SZDWG & SZDWH |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 18 June 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 April 2004 and handed down on 20 May 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
18 November 2003 to refuse to grant the applicants a protection visa.
Background
The applicants in these proceedings are not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and have been given the pseudonyms “SZDWG” (applicant husband) and “SZDWH” (applicant wife).
The applicants are husband and wife and claim to be citizens of India. The applicant husband most recently arrived in Australia on 17 August 2003 on an Indian Passport. On 24 September 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.3-58) (“CB”). The applicant wife has not made specific claims under the Refugee Convention and was joining the applicant husband’s application as a family member. On
18 November 2003 the delegate refused to grant a protection visa
(CB pp.64-73) and on 22 December 2003 the applicant husband applied to the Tribunal for a review of the delegate’s decision
(CB pp.81-84).
Both applicants claim they were born in India, their ethnic group is Indian and their religion is Hindu. The first applicant claimed that he and his wife came from Gujarat and in his area 80% of the population is Muslim. The applicant husband stated that while their early life was somewhat peaceful, he claimed that over the last few years it had become very dangerous to live in the area. The applicant husband claimed he ran his own business but was ordered by Muslim gangs to close it on a number of occasions (CB p.107).
The applicant husband claimed he decided to join a Hindu mission and was chosen to perform religious services for his guru in country [A]. The applicant was away for several years but stated that “nothing drastic happened” to his family who and they were not physically harmed while he was away. The applicant husband claimed that after he returned to India he moved back to his home and experienced occasional violence but then the situation “took a turn for the worse” after Muslim extremists caused the burning of the Sabarmati Express which also started a major riot throughout Gujarat. After that incident the applicant husband described a series of events relating to clashes between Hindus and Muslims in the area. He claimed that the local police failed to offer him protection and that the lodging of complaints with police was useless. The applicant husband claimed that because he and his family lived in an area dominated by Muslims he feared they would eventually lose their lives at the hands of the Muslims during one of the violent and racial attacks (CB pp.107-109).
The Tribunal’s findings and reasons
Mr R J Bromwich, Counsel for the respondent, filed written submissions prior to the hearing providing a convenient summary of the Tribunal’s decision which I have adopted as follows:
a)The Tribunal accepted that the applicants were Indian nationals and that their religion was Hindu (CB p.115.5);
b)The Tribunal characterised the applicants’ claim as being a fear of persecution because of their Hindu religion and race and imputed political opinion (CB p.115.6);
c)The Tribunal accepted, in relation to the claims of imputed political opinion, that the applicants’ claims made at the hearing that they were not members of any political party or had any political or community profile whatsoever. Rather, because some members of the Hindu nationalist organisation in India, the Vishwa Hindu Parishad (“the VHP”), attended funeral arrangements for a relative held at their house, the applicants said they would be persecuted because of imputed political opinion (CB p.115.7);
d)
The Tribunal noted that while the applicants, being otherwise credible and plausible, should, unless there were good reasons, be given the benefit of the doubt, it was not the case that the evidence of an applicant should be believed by the Tribunal unless specifically disproved by objective evidence before the Tribunal, with the Tribunal not being required to accept uncritically any and all allegations made by an applicant
(CB p.115.8);
e)It was for the Tribunal to be satisfied that all the statutory elements for the grant of a protection visa were made out, relying on Minister for Immigration & Ethnic Affairs v Guo (“Guo”) at 596 (CB p.116.2).
f)The Tribunal did not accept that because some members of the VHP were at the applicants’ house on one occasion that the applicants would be regarded as political figures or even supporters of the VHP or indeed any other party, noting that they did not claim they had ever stood for parliament or political office and did not claim they had had even peripheral political involvement of any sort. The Tribunal was satisfied that there was no reason for anyone in the local community or elsewhere to believe that the applicants held a political opinion, be it actual or imputed (CB p.116.5).
g)The Tribunal did not accept that the applicants had any political profile whatsoever and did not accept there was even a remote chance they would have a political opinion imputed to them or be regarded as VHP supporters, let alone party members or political activists, based purely on some members of the VHP attending funeral arrangements at their home. The Tribunal was not satisfied on that basis the applicants would be subjected to serious harm amounting to persecution (CB p.116.7);
h)The Tribunal was satisfied that the applicants had embellished their claims with the objective of enhancing their claims for protection visas, and found that this also went to the matter of their credibility (CB p.116.9);
i)
The Tribunal accepted that the applicants are religious Hindus and that the applicant husband joined a Hindu mission and was chosen to perform religious service for his guru and went to another country for several years, leaving his family in India
(CB p.117.2);
j)The Tribunal noted that despite all the events that the applicants claimed had happened to them in considerable detail, they had not provided any evidence whatsoever to support their claims, such as copies of police reports, newspaper accounts of events in which they claimed they were involved or even letters from relatives and friends (CB p.117.5);
k)The Tribunal noted that the applicants stated that the hospital refused to provide copies of the applicant husband’s hospital records and that the police and hospitals tried to hide things and that police were corrupt. However, having regard to the claimed extent of the attacks, not only on the applicants and their property over a number of years, but also on their neighbours, relatives and friends (including a number of claimed murders), and the availability of other impartial services such as their own doctors, the media or their neighbours, the Tribunal did not accept these claims (CB p.117.6);
l)While accepting that the applicants had, from time to time, been subjected to random communal discrimination and possible violence, which does occur in India, the Tribunal accepted independent country information that the Indian Government was effectively addressing the issue and taking preventative action to avoid further flash points and community violence and provided adequate State protection (CB pp.117.7-118.3);
m)
The Tribunal accepted that the constitution provided for secular government and the protection of religious freedom, that the central government generally respected those provisions in practice and that the judiciary in India was independent
(CB p.118.3);
n)Notwithstanding the applicants’ claims that the local Muslim police were corrupt and unresponsive to their complaints, the Tribunal noted that the applicants did not claim they took up what were serious complaints with non-Muslim police officers or higher authorities (CB p.118.5);
o)The Tribunal accepted that on three occasions the applicant husband returned from countries in which he could have sought protection (being twice from another country and once from Australia), and was satisfied that he would not have done this nor would he have returned and remained in his house where he claimed he and his family had been attacked on many occasions, if he had a well-founded fear of serious harm amounting to persecution for Convention reason (CB p.118.6);
p)
Based on the applicants’ claims and the independent country information put to the applicants at the Tribunal hearing, and notwithstanding the claims about the murder of his relatives, other neighbours and his children’s friends, the Tribunal was satisfied that the applicants did not have a well-founded fear of persecution on this basis and would receive State protection from the police and other authorities if they returned to India
(CB p.118.7);
q)The Tribunal accepted that notwithstanding their claims, both applicants remained in their house and only sold the house before they departed for Australia (CB p.118.8);
r)It was noted that at the hearing the Tribunal questioned both applicants as to why they remained at the same address even though they claimed people were trying to kill them. The Tribunal specifically raised with the applicants that this issue went to the question of their credibility and the claims they had made. The Tribunal did not accept the applicant husband’s answer that his father had brought the house for him and it was costly to buy or move to another place (CB p.119.3);
s)The Tribunal noted that the applicant husband claimed he was not able to move elsewhere as he was working for himself and was only able to work, support and provide necessities for his family and therefore could not afford another house. The Tribunal put to the applicant husband that he was able to afford to come to Australia twice and that if he was able to raise money for these purposes he would surely have enough money to move either a short or long distance away from his existing home if he feared for his safety (CB p.119.5);
t)The Tribunal did not accept the applicants’ claim that everywhere is the same in India and no place is safe, or the claim that once the Muslims decided to target someone they finish them off wherever they are. The Tribunal was satisfied that, if indeed the applicants had experienced violence and physical abuse, at the very least they would have moved elsewhere or stayed with relatives or friends (CB p.119.6);
u)Given the fact the applicants had not moved house and the earlier finding concerning the applicants’ credibility, the Tribunal was satisfied that while the applicants had experienced some difficulties because of general Hindu/Muslim tensions in the area, the difficulties were not so severe that they motivated the applicants to move elsewhere to avoid serious harm amounting to persecution for a Convention reason or even for their own comfort and well being (CB pp.119.8-120.2);
v)The Tribunal did not accept that if the applicants had lived in another part of Gujarat or elsewhere in India anyone would try and track them down (CB p.120.6);
w)The Tribunal noted that communal violence did erupt in India from time to time and there had been a number of serious outbreaks of community violence in Gujarat. However, that of itself did not make an individual a refugee because a Convention reason or reasons must constitute at least the essential and significant motivation for the persecution feared: see s.91R of the Act. A generalised fear in relation to conditions within the country, considered separately from the Convention related claims already addressed by the Tribunal, did not, in this case, amount to a well-founded fear of persecution for a Convention reason (CB p.121.2);
x)The Tribunal was satisfied that if the applicants did not want to return to their home in Gujarat, they would be able to move elsewhere in the Gujarat State or indeed in India with some initial inconveniences but nothing that would amount to serious harm amounting to persecution for a Convention reason. The Tribunal also noted that the applicants are part of the 81.3% Hindu majority in India, they are relatively young and able to work and the applicant husband worked as a self employed person and would be able to apply this profession wherever he lived in India and therefore support his family (CB p.121.4); and
y)The Tribunal was satisfied that there was not a real chance that the applicants would experience serious harm amounting to persecution for a Convention reason if they returned to India either now or in the foreseeable future and found there were not refugees (CB p.121.8).
Application for review of the Tribunal’s decision
On 18 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 23 November 2004 the applicant filed an amended application and an affidavit of the same date sworn by the applicant. At the hearing Mr Pesce, Counsel for the applicant, claimed that on 28 January 2005, Mr A Kumar, the original Counsel briefed by the applicant filed an amended application and an affidavit which relied on none of the original grounds and integrated some amendments However, there were no documents on the Court file or registered at Registry that fit that description. On 26 May 2005 Mr Kumar filed the applicant’s outline of submissions together with a further amended application which recorded a number of changes to the applications dated 28 January 2005. The parties agreed that the grounds contained in the applicant’s outline of submissions at page 3, Section 4 “Claim Against the Respondent Tribunal’s Decision”, which was filed on 26 May 2005, were the grounds of the application for the purpose of the hearing and they are reproduced as follows:
1.The applicant is a citizen of India. If the applicant is deported from Australia he will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees.
2.Erred in law in arriving at the decision to affirm the respondent’s decision not to grant the applicant a protection visa.
Particulars
iThe Tribunal incorrectly applied the internal flight principle;
iiThe Tribunal erroneously applied the definition of refugee;
iiiThe Tribunal erroneously found that care and protection is available through the State;
iv[Deleted]
vThe Tribunal erroneously rejected that there was no real chance that the applicant would [be] attacked.
3.The Tribunal’s decision involved jurisdictional error affecting the decision which is subject to this application in that:
(a)it asked itself [the] wrong question and applied the wrong test
Particulars
iThe Tribunal misinformed itself of the particular circumstances of the applicant and incorrectly applied the test.
iiThe Tribunal erroneously applied independent information.
iiiThe Tribunal erroneously rejected that there was no real chance that the applicant would [be] attacked.
ivThe Tribunal asked wrong questions in assessing the applicant’s fear;
vThe applicant would not suffer Convention based persecution;
viThat there is no real chance that the applicant would be persecuted;
viiHaving found that some of the attacks on the applicants failed to properly consider the objective and subjective requirements of the tests;
viiiFailed to consider if there was effective state protection.
(b)The applicant was not accorded procedural fairness;
Particulars
i[Deleted]
ii[Deleted]
iii[Deleted]
ivThe Tribunal proceed to make the decision with further relevant information;
4.The making of the decision of the Tribunal was an improper exercise of the power conferred by the Migration Act:
(a)The respondents took the following irrelevant considerations into account in the exercise of the power:
iThe status of the applicant’s fear;
iiThe general country information without consideration of the facts of this case.
(b)The respondent failed to take into account the following relevant considerations into account in the exercise of the power:
iThe proper religious status of the applicant
iiThe independent information provided by the applicant;
iiiTo independently investigate the applicant’[s] evidence of fear that they would be persecuted.
Mr G Pesce of Counsel, appearing for the applicant, appeared at the hearing in the place of Mr Kumar. Mr Pesce indicated that he intended to abandon a number of the grounds and consolidate the pleadings into four new grounds in an attempt to clarify the pleadings and streamline the submissions. The revised grounds that were argued by the applicant were as follows:
Ground 1 (old ground 3(a)(iii), (v) and (vi)):
That the Tribunal erroneously found that there was no “real chance” that the applicants would be subject to real harm and suffer Convention based persecution i.e. religious, political or racial.
Ground 2 (old ground 2(iii)):
That protection was available through the State
Ground 3 (old ground 3(a)(ii)):
That the Tribunal erroneously applied the independent country information.
Ground 4 (old ground 3(a)(vii) and 4(b)(ii)):
That the Tribunal having found that the applicants had been the subject of attacks failed to properly consider the evidence.
The Law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Submissions
Mr A Kumar, the applicant’s original Counsel, filed an outline of submissions on behalf of the applicant. However, before the hearing Mr Kumar had to hand the brief to Mr G Pesce who also filed submissions on behalf of the applicant. At the hearing Mr Pesce advised the Court that he would rely on Mr Kumar’s submissions as far as they related to the citations of the law but not in relation to the factual matters or findings of the Tribunal.
Mr R J Bromwich of Counsel, appearing for the respondent, filed written submissions prior to the hearing. The respondent’s solicitors prepared and filed a Court Book on 22 September 2004.
Reasons
The first of the applicant’s revised or re-pleaded grounds was that the Tribunal erroneously found that there was no “real chance” that the applicant would be subject to real harm and suffer Convention based persecution. The claim was based on fear relating to race, religion and political affiliation. It was submitted that the following passage from the Tribunal’s findings and reasons was in error:
“In regard to their claims of imputed political opinion, the Tribunal accepts the first applicant’s claims made at the hearing that they were not members of any political party or had any political or community profile whatsoever. Rather, the applicant’s claim that because some members of the VHP attended the funeral arrangements for the first applicant’s relative held in their house, they fear they will be persecuted because of their imputed political opinion. While it is generally the case that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt, it is not the case that the evidence of an applicant should be believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal.”
(CB p.115)It was argued on behalf of the applicants that, in reaching its conclusion there was no real chance that the applicants would suffer persecution, the Tribunal applied the wrong test. It was submitted that a well-founded fear is comprised of two components, one subjective and one objective. The nature and effect tests relating to well-founded fear is found in Chan Yee Kin v Minister for Immigration & Ethnics Affairs (“Chan”); Guo. The test posed by Article 1 of the Convention has been paraphrased in the question as whether there is a “real chance” of persecution: see Chan above. “Real chance” means a substantial, as opposed to remote or far fetched chance, of persecution. Any analysis of whether a fear of persecution is well-founded requires consideration of whether there is a substantial basis for the fear. This was illustrated be a statement of principle in the High Court decision of Guo per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow J at 572:
“Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.”
Counsel for the applicant submitted that the Courts have warned against substituting the “real chance” test for the test posed by
Article 1. While the majority of the High Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) in Guo observed that in most cases the application of the real chance test would lead to the same result as an application of the phrase, “well-founded”, it also commented at 572 that:
“…it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term. In the present case, for example, Einfeld J thought that the “real chance” test invited speculation and that the Tribunal had erred because it “has shunned speculation”. If, by speculation, his Honour meant making a finding as to whether or not an event might or might not occur in the future, no criticism could be made of his use of the term. But it seems likely, having regard to the context and his Honour’s conclusions concerning the Tribunal’s reasoning process, that he was using the term in its primary dictionary meaning of conjecture or surmise. If he was, he fell into error. Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term “real chance” not as epexegetic of “well-founded”, but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.”
Counsel for the applicant submitted that a person may have a well-founded fear of persecution for a Convention reason even though that person may not have experienced persecution in the past: Ibrahim v Minister for Immigration & Multicultural Affairs (“Ibrahim”) per McHugh J at[83]; Perampalam v Minister for Immigration & Multicultural Affairs at [14]:
“The Convention does not require that the individual who claims to be a refugee should have been the victim of persecution. The Convention test is simply whether the individual concerned has a ‘well-founded’ fear of persecution (Ibrahim per Gaudron at [16]).”
Dealing with the next element of the applicants’ claim, that they were the subject of religious persecution, the Tribunal found that the parties were religious Hindus. However, the applicants argued that the Tribunal denied their claim that they were being limited in the exercise of their freedom to practise their religion because they did not produce collaborative evidence. The applicants argued that for the Tribunal to require them to produce collaborative evidence would suggest that any person who came before the Tribunal seeking its assistance must have sufficient forensic knowledge to be able to know what evidence the Tribunal requires, the amount of collaborative evidence and the reasons or circumstances for which they should provide collaborative evidence even though the statute provides that no such evidence is required. The applicants claimed that the standard of test is far too onerous.
Counsel for the respondent submitted that the applicants’ suggestion that the real chance test was incorrectly applied was wrong. The respondent stated that the Tribunal set itself the appropriate legal test and applied it correctly. In the Tribunal’s decision under the heading “Definition of a Refugee”, the Tribunal set out the four key elements to the Convention definition. The fourth of these elements is that an applicant’s fear of persecution for a Convention reason must be “well-founded”. The Tribunal member stated:
“A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.” (CB p.106)
That statement of principle comes from the case of Guo and is a virtual paraphrasing of the relevant passage from that decision. What the Tribunal member has done is have direct regard to Guo in that he was fully aware of the correct principles to be applied. In the case of Guo, the six judges in the majority did express a concern that what had been said in the prior case of Chan could represent a replacement of the concept of “real chance” for the proper Convention term of “well-founded fear of persecution”. Their Honours said at 572.3:
“No doubt in most, perhaps all, cases arising under s…, the application of the real chance test, properly understood as the clarification of the phrase “well-founded”, leads to the same result as a direct application of that phrase.”
I accepted the respondent’s submission that the correct test had been applied by the Tribunal.
The next complaint raised on behalf of the applicant was what was described as corroboration, although that was not a term found in the Tribunal’s decision but instead a characterisation adopted by the Counsel for the applicant. It was important to note that prior to the Tribunal hearing a letter dated 27 February 2004 was forwarded to the applicants indicating the Tribunal had considered the material before it in relation to their application but was unable to make a decision in their favour on that information alone (CB p.87). Upon receipt of the letter, the applicants knew that their mere account had not been enough to satisfy the Tribunal of their claim. They were clearly on notice that something more was required and it was for them to decide what further material they wished to put before the Tribunal.
The letter also contained an invitation to attend a hearing of the Tribunal on 14 April 2004 at which time the applicants could make oral presentations and enlarge upon what was previously put to the Tribunal in writing. The letter also contained a further invitation to submit additional documentation or written argument for the Tribunal to consider. Although Counsel for the applicant indicated that the Tribunal referred to the balance of probabilities and the onus of proof that was not the test and was far too onerous in many circumstances. What was required was that the Tribunal member, once it reached the Tribunal stage, was satisfied that someone did have a well-founded fear of persecution for Convention reason and in some cases there may be quite a low threshold of well below what might be regarded as a simple standard of proof. It was best described as a variable test according to the particulars of the circumstances and onus was quite inappropriate to apply to this area.
Section 36(2)(a) of the Act establishes satisfaction as to the existence of protective obligations under the Convention as a criteria for the grant of a protection visa. Section 65 of the Act requires the refusal of a grant of a visa if, inter alia, the described criteria has not been met. The Tribunal was required to assess the material that was before it and was allowed to look at the fact that the applicants appearing before it, repeating their verbal account, describing a range of things occurring to them, which one might expect would be affected in someone else’s experience. However, the Tribunal was entitled to have regard to the fact that what it was being asked to accept was a bare assertion and nothing more. There was nothing wrong with the Tribunal member not being satisfied with the bare assertion especially in circumstances where there were internal factors which indicated the bare assertion was not sustainable.
Such a contradiction would be of the nature that, although the applicants on their own account would face the risk of being killed, raped or their children killed, continued to live at their same house for many years while the threat persisted. That was a factor that the Tribunal would have been entitled to take into account to weigh and assess the applicants’ claims in an attempt to reach a conclusion as to whether the bare assertion was sustainable. The process was simply a weighing and assessing of the issues presented. The Tribunal correctly stated that it was not required to accept uncritically any of the allegations or assertions made by the applicant and relied on the authority of Randhawa v Minister for Immigration & Ethnic Affairs per Beaumont J at 451:
“Proof of persecution in the context of an application for refugee status is a matter of some complexity. As Grahl-Madsen has noted (The Status of Refugees in International Law at 145-146), in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for, since it is a well-known fact that a person who claims to be a refugee may have difficulties in proving his allegations (cf Gaudron J in Chan at 413); and it would go counter to the principle of good faith in the interpretation and application of treaties if a contracting state ‘should place on a suppliant a burden of proof which he, in the nature of things, could not possibly cope with’. This should not, however, lead to ‘an uncritical acceptance of any and all allegations made by suppliants’.”
I am not satisfied that ground one can be sustained.
The second of the revised grounds was that protection was available through the State. The applicants claimed that the Tribunal, in reaching its conclusion that protection was available through the State, relied upon independent country information which indicated there were religious riots in India and that the government of the country was against them and tried to keep them under control. Counsel for the applicant submitted that the Tribunal fell into error because it noted that “the applicants do not have a well-founded fear of persecution because they would receive State protection” (CB p.118.7). The Tribunal did not accept that because some members of the VHP were at their home on one occasion to attend a funeral that the applicants would be regarded as political figures, supporters of the VHP or indeed supporters of any political party (CB p.116). It was submitted that this conclusion that the Tribunal reached did not reflect the proper application of the test to the evidence. It was submitted that it represented a substitution of a subjective appeal by the Tribunal member and not a question of evidence.
Counsel for the respondent indicated that what the Tribunal actually said as a statement of principle was that the persecution must have an official quality in the sense that it was official or officially tolerated or uncontrolled by the authorities (CB p.115.5). That is the actual statement of principle that the Tribunal relied upon: Ibrahim. Counsel for the respondent contended that there was no substance to the complaint that was made in relation to the Tribunal’s reference to effective protection. What the Tribunal did was look at the individual applicant’s circumstances and the country information. The Tribunal then assessed what the applicant was saying both by way of internal consistency and inconsistency and measure it against such country information as was available in order to reach its final conclusion.
It was submitted that there was no inappropriate substitution of the wrong test and there was no error to be found in the Tribunal’s decision. I accepted the respondent’s arguments in respect of this ground.
The third of the revised grounds was that the Tribunal was in error by applying the independent country information. Counsel for the applicant submitted that the question before the Tribunal was not what was the general status of things in a particular country, but rather what was the particular individual who comes before the Tribunal suffering and what was the evidence in relation to that suffering. It was submitted that any finding in relation to the country could not apply to the individual because the individual must be treated in an entirely different way to that of a general member of the population. The contention was that whenever there is a general proposition that the Tribunal is considering allegations of specific propositions then the specific propositions must take precedence over the general. As part of the element that the Tribunal took into consideration when deciding that the applicants were not in possession of a well-founded fear of persecution, the Tribunal relied on the questions and answers given before it and to the effect that the parties had the capacity within themselves to actually move location if they were being persecuted.
Counsel for the applicant contended that because the applicants did not move from their area, the Tribunal member decided it was a question going to the applicants’ credibility and, as such, they should not be believed because if they were in fear of serious harm which was severe enough then they would have moved. Counsel for the applicant contended that it was not just a question of moving because of politics, religion or threats to physical health, rather it was the whole picture that the Tribunal had to take into account. The submission was that there was something terribly wrong with the logic the Tribunal engaged in coming to its conclusion and that was that the Tribunal implicitly assumed that because the applicants had not moved they did not hold the belief that they were in serious danger of persecution. Counsel argued on behalf of the applicant that a person might be able to deal with a lot of abuse, perhaps for weeks or years, but they do reach a point where they cannot deal with it anymore. The mere fact that the Tribunal found that they had not moved, in itself was not sufficient to find that the threat the applicants felt was not serious enough. It was submitted that threats have a cumulative effect and that was why the Tribunal should have seen that mere fact that it took the applicants a long time to move away from the country was not indicative of the seriousness of their situation.
Counsel for the respondent contended that the submissions made on behalf of the applicants in respect of this ground misinterpreted the Tribunal’s decision. The respondent contended that the Tribunal had actually considered what the applicants had said, accepted that there was some random communal discrimination and possibly violence, but ultimately rejected the rest of the applicants’ claims. This culminated in the conclusion by the Tribunal on this point:
“… while being willing to give the applicants the benefit of the doubt and accept that they have experienced some difficulties in living in their house/shop because of general Hindu/Muslim tensions in the area, the Tribunal is satisfied that these difficulties were not so severe that they motivated the applicants to move elsewhere [in order to avoid serious harm amounting to persecution for a Convention reason] or even for their own comfort and well being. It follows that the Tribunal does not accept these claims and again finds that this goes to the matter of their credibility.” (CB pp.119-120)
In regard to this issue of moving from their area, the only reason advanced by the applicant husband at the hearing was that his father had brought the house for him and it was too costly to buy or move to another place, which was a claim that the Tribunal rejected in light of the fact of overseas travel, the seriousness of the threat and the capacity to come to Australia on two occasions. The country information was really applied to the issue of State protection, but the applicants did not just fail on State protection, they failed on not satisfying the Tribunal that they had any well-founded fear of persecution and strictly speaking State protection did not arise. The Tribunal’s objection to the applicants’ account was principally not based on country information but based on inherent implausibility in their own account.
The applicants’ fourth revised ground was that the Tribunal, having found that the applicants had been subjected to attacks, failed to properly consider the evidence. Counsel for the applicant submitted that the Tribunal, having found that the applicants had been subjected to attacks, given there was ample evidence to support the allegations of physical threats to themselves, to their livelihood and to members of their family, had failed to properly consider the evidence.
Counsel for the respondent submitted that this ground was wrong on two levels. It was wrong in terms of its summary of what the Tribunal found and it was erroneous insofar as it suggested, once again, a merits review. What the Tribunal found was that the applicants, from time to time, had been subjected to some random communal discrimination and possible violence. It was submitted that this was something that erupted in India from time to time and the applicants’ most substantive claim of attacks being made upon them or alternatively threats being made upon them, were all claims that were not found by the Tribunal to have taken place. They were claims that were rejected by the Tribunal. In respect of this second half of the complaint, being a failure to properly consider the evidence, it was almost in its own terms an admission that what was being sought to be done was to engage a merits review, a proposition that is not within the power of the Court to entertain.
Conclusion
I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The applicants’ claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 29 June 2005
0
9
0