SZDXB v Minister for Immigration
[2005] FMCA 35
•28 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDXB v MINISTER FOR IMMIGRATION | [2005] FMCA 35 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), s.474
Judiciary Act 1903 (Cth), s.39B
SZDXB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 770
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 (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407
Abedi v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 114 FCR 186
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597
| Applicant: | SZDXB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1909 of 2004 |
| Delivered on: | 28 January2005 |
| Delivered at: | Sydney |
| Hearing date: | 10 December 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondent: | Mr A McInerney |
| Solicitors for the Respondent: | Sparke Helmore |
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 |
SYG1909 of 2004
| SZDXB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 September 2002 and handed down on 10 October 2002, affirming the decision of the delegate of the respondent (“the delegate”) made on 28 February 2001 to refuse to grant the applicant a protection visa.
Background
The applicant, who claimed to be a citizen of India, arrived in Australia on 20 January 2001. On 1 February he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 28 February 2001 the delegate refused to grant a protection visa and on 26 March 2001 the applicant applied for a review of that decision.
The applicant was born in Hyderabad, Andhra Pradesh, India on 19 July 1963. He has lived in Hyderabad all his life. He writes, reads and speaks English, Hindu and Telugu. The applicant worked in India as a self employed electrician. He married in 1994 and has two children of that marriage.
The applicant stated that owing to his conversion to Christianity he faced numerous problems with the Hindu fundamentalist government. He claimed he was tortured by many members of Hindu organisations in India, his life had been threatened and he had no contact with his wife and children. The applicant referred to an incident after his conversion in which he claimed he was tortured and strangled. He feared if he returned to India he would be murdered. The applicant feared harm at the hands of Hindu fundamentalist groups and all of his relatives had turned against him. In order to save his life the applicant fled India.
The decision of the delegate was made on 28 February 2001. The delegate was “unconvinced by the applicant’s claims”, which he found to be “insufficiently substantiated” to allow a proper assessment against other evidence. The applicant had provided no dates with which to substantiate the events he claimed had occurred. His claims were “vague” (Court Book p.40) (“CB”). The Tribunal noted the delegate’s decision referred to independent country information in respect to religious tolerance accorded to Christians in India (CB pp.37-40). A copy of the delegate’s decision was sent to the applicant at his home address (CB p.33). The delegate concluded that the applicant’s claimed fear of persecution was not “genuine”, and that there was no real chance that the applicant would be persecuted for a Convention related reason upon his return to India or in the foreseeable future (CB p.41). The applicant sought review of the delegate’s decision in the Tribunal. He gave oral evidence to the Tribunal on 27 August 2002.
The Tribunal’s findings and reasons
The Tribunal made the following findings in respect to the applicant’s claims:
a)it accepted that he was a national of India (CB p.76.3).
b)it identified that the applicant’s case was that he feared harm owing to religion and, in particular, feared harm at the hands of fundamentalist Hindus because he had converted from Hinduism to Christianity (CB p.76.4).
c)it accepted that the applicant went into villages to attend prayer meetings, and in the course of these visits talked to people about Jesus (CB p.77.3).
d)it accepted that on one occasion in 1999, whilst attending a religious gathering in a village some 50-60 kms from Hyderabad, the applicant along with others was assaulted and had to disperse when the gathering was attacked by an unknown group (CB p.80.5) but found that that incident was a random criminal attack (CB p.80.7).
e)the effect of the independent country information was that whilst there had been specific incidence of violence towards members of the Christian community, there has never been persecution of Christians at the hands of the Government of India or the community at large (CB p.80.2).
f)it was not satisfied that the Indian authorities promoted, condoned or permitted persecution of Christians in India, or that they withheld protection from Christians (CB p.80.8).
g)it was satisfied that the authorities had taken action in respect to incidents of violence towards Christians (CB p.80.9).
h)as to the applicant’s proselytising, the Tribunal did not accept that:
i)his activities specifically put him at risk of mistreatment at the hands of fundamentalist Hindus (CB p.77.4).
ii)he was arrested and detained or that he was charged by the Police (CB p.77.5).
iii)he was singled out, threatened and assaulted in Hyderabad or indeed anywhere else by fundamentalist Hindus owing to religion including his conversion to Christianity (CB p.76.5).
iv)there was a real chance that the applicant was at any risk of persecution at the hands of fundamentalist Hindus, the Police or anyone else owing to his conversion, or to religion (CB p.76.6).
v)that he was singled out by fundamentalist Hindus and was assaulted and verbally threatened (CB p.80.1).
vi)that he was singled out by the Police and arrested, detained or charged in the manner he alleged (CB p.80.2).
i)The Tribunal was not satisfied that:
i)the applicant had been persecuted in the past for reasons of his conversion from Hinduism to Christianity (CB p.81.2).
ii)there was a real chance in the future of him being persecuted by his family or indeed anyone (CB p.81.3).
iii)the applicant had been or faced a real chance of being persecuted for a Convention Reason (CB p.81.4).
iv)there was a real chance in the future of him being selected or targeted for persecution owing to a Convention ground (CB p.81.5).
v)the applicant had a well-founded fear of persecution for Convention purposes (CB p.81.5).
Litigation history
For the purpose of a Notice of Motion filed on 27 September 2004 by the respondent, an affidavit of Catherine Jane Gray sworn and filed on 27 September 2004 (“the affidavit of Ms Gray”) was admitted into evidence. That affidavit provided details of the previous litigation history of this matter as follows:
a)On 18 September 2002, the Tribunal constituted by Susan McIllhatton made the decision to affirm a decision of the delegate to refuse the applicant a protection visa. The decision was handed down on 10 October 2002.
b)On 14 November 2002, the applicant’s solicitor, Mark Wallis Clisby, filed a draft order nisi and accompanying affidavit in the High Court of Australia in respect of the Tribunal decision handed down on 10 October 2002. Those proceedings were given High Court No: A289 of 2002.
c)On 7 February 2003, his Honour Justice Hayne made orders remitting the High Court proceedings No. A289 of 2002 to the Federal Court of Australia. Those proceedings were given the Federal Court proceedings No: S251 of 2003. The applicant was allocated the Federal Court publication name “Applicant S289 of 2003”.
d)On 26 May 2003, his Honour Justice von Doussa made several orders in relation to Federal Court proceedings No: S251 of 2003.
e)On 18 July 2003, his Honour Justice Selway dismissed the application in proceedings No: S251 of 2003 with costs because there had been a failure to take any steps in accordance with the Orders made on 26 May 2003 by his Honour Justice von Doussa.
f)On 22 June 2004 the applicant filed an application for judicial review in the Federal Magistrates Court of Australia to review the Tribunal decision handed down on 10 October 2004. Those proceedings were given the Federal Magistrates Court proceedings No: SZ1909 of 2004.
On 12 October 2004 I heard the Notice of Motion by the respondent seeking orders for these proceedings to be summarily dismissed. I dismissed the interlocutory application on that date and set the matter down for a substantive hearing of the issues on 10 December 2004. The reasons for the decision were published in SZDXB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 770 and delivered on 6 December 2004.
Application for review of the Tribunal’s decision
On 22 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903. On 18 October 2004 an amended application was filed. On 8 December 2004 the applicant filed written submissions indicating that the applicant had abandoned grounds 3 and 4 of his application filed on 18 October 2004. The remaining grounds are as follows:
“1.The applicant claimed that he did not return to India to attend his mother’s funeral ‘due to his fears for his safety’: see page 9 of Tribunal’s decision. The Tribunal failed to take this matter into account in making its decision, giving rise to jurisdictional error.
2.The Tribunal, in accepting that the applicant “went into villages to attend prayer meetings and in the course of these visits he talked to people about Jesus” (see page 16.3 of Tribunal’s decision), accepted that the applicant proselytized. The Tribunal failed to consider whether the applicant, as a Christian who proselytized, faced a real chance of persecution. On this basis, the Tribunal fell into jurisdictional error.”
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 (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and 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 (“Dranichnikov”).
Submissions
Mr B Zipser of Counsel, appearing for the applicant, filed written submissions prior to the hearing. In those submissions Counsel indicated that the two issues being pursued were:
a)Whether the Tribunal fell into jurisdictional error by failing to take into account the applicant’s claim that he did not return to India to attend his mother’s funeral “due to his fears for his safety” (“Return to India issue”); and
b)Whether the Tribunal fell into jurisdictional error by failing to consider whether the applicant, as a Christian who proselytized, faced a real chance of persecution (“Proselytization issue”).
Mr A McInerney of Counsel, appearing for the respondent, filed written submissions prior to the hearing.
Reasons
Before addressing the individual grounds, I wish to note that the Tribunal made findings of fact adverse to the applicant’s case. The Tribunal did not accept the applicant’s evidence to be credible. The Tribunal found that the applicant had been attacked on only one occasion in the past and the explanation for the attack was a random criminal act. The Tribunal did not accept that the applicant had suffered persecution in the past for Convention reasons because of the lack of nexus.
The applicant did not impress the Tribunal as being reliable or frank, showing a willingness to alter his evidence in the manner which suited his purposes and demonstrated a propensity to give oral evidence in a manner to suit his purposes which severely undermined his veracity.
The adverse finding made to the applicant’s credibility was a finding of fact par excellence: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham per McHugh J at [67]. In reaching this conclusion the Tribunal had regard to the applicant’s demeanour, the manner in which he answered questions, the omission of important claims from his written application, the changing of his evidence during the course of the hearing and his failure to provide specific details as to when the incidents had occurred, the nature and extent of the threats and torture to which he claimed he had been subjected, and details of his religious activities.
I now turn to the specific claims and in particular the issue of the applicant’s return to India. This issue was raised in oral evidence to the Tribunal on 27 August 2002 and was recorded in the Tribunal decision under the heading “Claims and evidence” as follows:
“In relation to the additional information which the applicant had indicated he had wanted to provide about his mother he stated that she had died while he was in Australia. He added that he had not been able to return to India to attend the funeral due to his fears for his safety.” (CB p.70.3)
It was the applicant’s contention that if this claim were true, it supported the applicant’s overall claim that he had a genuine fear for his safety in India, and was relevant to the Tribunal’s assessment of whether the experience of the applicant claimed to have been suffered in India were true. It was submitted that in these circumstances the Tribunal should have dealt with the claim in the section of its decision “Findings and reasons”. However, it was submitted that in not dealing with the claim in this way the Tribunal failed to evaluate one of the applicant’s claims, giving rise to jurisdictional error. Alternatively, it was submitted, the Tribunal failed to take this claim or matter into account in evaluating other claims of the applicant, giving rise to jurisdictional error: Abedi v Minister for Immigration & Multicultural & Indigenous Affairs per Merkel J at [27]:
“In so far as the material contains information that is a relevant consideration, in the Peko Wallsend sense, then it is not open to the RRT to fail to take into account that consideration.”
Although the Tribunal decision did not make specific reference to the applicant’s mother’s funeral in its “Findings and Reasons”, it did systematically address the issues that the applicant had raised as the basis of his alleged fear. During the applicant’s oral evidence he provided the Tribunal with a series of incidents which he claimed had occurred though he had not detailed those in his original application. All of these alleged incidents were quoted as reasons why the applicant claimed he would suffer at the hands of the fundamentalist Hindus if he were to return to India. It was submitted that there was nothing specific or unique that the applicant would be exposed to or suffer should he return for his mother’s funeral as opposed to any other reason. The Tribunal’s “Findings and Reasons” did not accept any assertions made by the applicant that there was “any risk of persecution at the hands of fundamentalist Hindus, the police or anyone else owing to his conversion or to his religion”. I believe that all of the reasons raised by the applicant in support of his claim of threats to his person in India were addressed by the Tribunal and the circumstances of his non attendance to his mother’s funeral was given as an issue for emphasis of his claim. All of the applicant’s arguments as set out in the Tribunal decision fail.
The second specific issue was the claim of proselytization. The applicant’s contention was that the Tribunal, “accepted that the applicant went into villages to attend prayer meetings and in the course of these visits he talked to people about Jesus” (CB p.77.3). It was submitted that on this basis the Tribunal accepted that the applicant was a Christian who proselytized. It was submitted that the country information before the Tribunal indicated that Christians who proselytized or were religious leaders were at greater risk of harm than other Christians. The US Department of State International Religious Freedom Report dated October 2001 indicated that:
a)In June 2000 a Catholic priest was killed (CB p.91.7)
b)In August 2000 a priest was beaten up for distributing Christian literature (CB p.93.7)
c)In December 2000 a Catholic priest was killed (CB p.93.9)
d)A short while earlier a nun was raped (CB p.93.9)
e)In January 2001 two Christian missionaries who were attempting to convert local tribes were beaten up (CB p.93.10)
f)In March 2001 two members of an Indian evangelical team were beaten (CB p.94.1)
g)“Some Hindu groups fear that Christians may try to convert large numbers of lower-caste Hindus … many acts of violence against Christians stem from these fears.” (CB p.94.5)
h)In March 2001 a Christian congregation was attacked because of a “perception that Christians were encouraging conversions of Hindus” (CB p.94.5)
i)In May 2001 a Christian priest was attacked. The attackers were “enraged by a priest’s distribution of pamphlets to propagate Christianity” (CB p.94.7)
j)The RSS, by using the adjective “missionary”, “taps into a longstanding fear of foreign religious domination” (CB p.94.10)
It was submitted that in light of this country information the Tribunal failed to consider whether the applicant, as a Christian who proselytized, faced a real chance of persecution, gave rise to jurisdictional error. Specifically:
a)The Tribunal failed to make a finding on “a substantial, clearly articulated argument relying upon established facts”: Dranichnikov at [24].
b)The Tribunal failed to deal with “an issue raised by the evidence advanced on behalf of the applicant and contentions made by the applicant”: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs at [47]; see also WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs at [46]-[47].
I accept the respondent’s submissions and accept the view that the Tribunal properly understood its function and considered whether or not the applicant faced a real chance of persecution if he were to return to India and its conclusion that there was no real chance that he would suffer persecution. In support of that conclusion the Tribunal made findings of fact to the effect that:
a)the applicant had not suffered persecution in the past which had any Convention nexus.
b)the effect of the independent country information was that there had not been persecution of Christians at the hands of the Government of India or the community at large.
c)the evidence did not suggest that the authorities were complicit in or tolerated violence towards Christians in India generally or the in State of Andhra Pradesh.
d)it was not satisfied that the Indian authorities promoted, condoned or permitted persecution of Christians in India or that they withheld protection from Christians
Conclusion
I am satisfied that the applicant’s substantive claim is unsustainable on the credibility finding of the Tribunal. In respect of the two specific grounds I am not satisfied that either of these can be maintained. No jurisdictional error has been made and the applicant’s 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 twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 28 January 2005
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