SZELK v Minister for Immigration
[2007] FMCA 201
•2 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZELK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 201 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65, 91R, 91X, 476 Federal Magistrates Court Rules 2001 (Cth) rr.44.11, 44.12 |
| Abebe v Commonwealthof Australia (1999) 197 CLR 510 Applicant S v the Minister for Immigration [2004] HCA 25 Australian Broadcasting Tribunal v Bond (1990) 1970 CLR 321 at 356 City of Enfield v Development Assessment Corp Commission (2000) 1999 CLR 135 Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Minister for Immigration v Rajamanikkam (2002) HCA 32 Minister for Immigration v SGLB Minister for Immigration v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration (No.2) [2004] FCAFC 236 NACB v Minister for Immigration [2003] FCAFC 235 NAIZ v Minister for Immigration [2005] FCAFC 37 NBKT v Minister for Immigration [2006] FCAFC 195 Re Minister for Immigration; Ex Parte Palmer (2003) 216 CLR 212 Re Ruddock; ex parte Applicant S154/2002 (2003) 201 ALR 437 SAAP v the Minister for Immigration (2005) 215 ALR 162 SJSB v Minister for Immigration (2004) FCAFC 225 SZATG v Minister for Immigration (2004) 215 ALR 358 SZBOV v Minister for Immigration (2005) FCA 1407 19 SZWU v the Minister for Immigration [2006] FCAFC 2 VWST v Minister for Immigration [2004] FCAFC 286 VXDC v Minister for Immigration (2005) 146 FCR 562 WAJQ v Minister for Immigration [2005] FCAFC 79 |
| Applicant: | SZELK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG296 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 30 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Silva |
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the Respondent: | G T Johnson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 31 January 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG296 of 2006
| SZELK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
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.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 31 January 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 9 December 2005 and handed down on 5 January 2006, affirming a decision of the delegate of the first respondent made on 19 August 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs 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 “SZELK”.
A Court Book ("CB") prepared by the respondent solicitors was filed and served on 29 March 2006 and is marked Exhibit “A” and read into evidence.
The applicant sought for the following affidavits to be admitted into evidence:
a)The affidavit of [SZELK] sworn on 29 January 2006 and filed in these proceedings on 31 January 2006. Attached to that document and marked “A” is a copy of the Tribunal decision, reference number N05/52205.
b)The affidavit of [SZELK] sworn 16 May 2006 and filed on the same date. Attached and marked “A” is a copy of the transcript of the hearing conducted by J Silva on 31 October 2005.
Background
The Tribunal decision of J Silva, reference number N05/55205, provides the following background information. The applicant, who claims to be a citizen of India, arrived in Australia on 24 August 1997 and again on 26 February 2001. On 29 September 2003, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 19 August 2005, a delegate of the first respondent refused to grant a protection visa and on 7 September 2005, the applicant applied to the Tribunal for review of the delegate's decision.(CB 110)
According to his protection visa application, the applicant is a male national of India and was aged 28 at the time of the Tribunal decision. The applicant states his religion as Hindu and that he speaks, reads and writes English, Telugu and Hindi.
The applicant was born in Hyderabad and attended school for 18 years, including high school and junior college. The applicant first arrived in Australia in 1997 and attended college in Sydney to complete diplomas in Business Management and Information Technology. A Bachelors degree in Information Technology was discontinued in 2003.(CB 112-3)
The applicant claims to fear harm in India from Muslims and Hindus as a result of communal tension between them.(CB 120.3) In particular, the applicant claims that Muslim fundamentalists, related to his girlfriend, would harm him because they were opposed to the inter faith relationship between the applicant and his Muslim girlfriend. The applicant further claims that Hindu fundamentalists would also harm him because they resented his family refusing to join forces with them and were also angered by his relationship with a Muslim.(CB 120.3)
Tribunal’s findings and reasons
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution in India for a Convention reason. Its reasons were summarised in the respondent's written submissions prepared by
Mr Johnson, and I repeat that summary as follows:a)The Tribunal did not accept the applicant's claim that there were Muslim fundamentalists in the family of the applicant's fiancée. As a result of that finding, the Tribunal was not satisfied the applicant was threatened by his fiancée's brother in late 2000.(CB 122.25) As the Tribunal did not accept that the fiancée's brother was a Muslim fundamentalist, the Tribunal also was not satisfied that he would be able to enlist the support of other extremists to harm the applicant.(CB 123.3)
b)The Tribunal found that there was only a small chance that the fiancée's family would disapprove of, or be openly hostile to, a mixed faith marriage. In any event, it found that there was no real chance that any such disapproval or hostility would amount to harm so serious as to constitute persecution. The Tribunal considered whether the practical challenge that the couple might face, including social and family pressure, was harm so serious as to amount to persecution. It answered that question in the negative. All these findings were ultimately ones of fact within the domain of the Tribunal: SZBOV v Minister for Immigration (2005) FCA 1407 at [19].
c)The Tribunal was not satisfied that harm which the fiancée's family might direct towards the applicant would be for a Convention reason.(CB 122)
d)The Tribunal was simply not satisfied that the applicant faced a real chance of "persecutory harm" (i.e. harm so serious as to amount to persecution) from any fundamentalist Muslim - whether at the behest of the fiancée's family or independently - if he returned to India.(CB 123.5)
e)The Tribunal then considered the applicant's claim to fear persecution from Hindu fundamentalists and was not satisfied of a well-founded fear of persecution by reason of a combination of four separate reasons.(CB123.8-124.5)
f)The Tribunal referred to the applicant's significant delay in lodging a protection visa application and his return to India for five months in late 2000, all of which was evidenced by a passport presented to the Tribunal by the applicant after its hearing.(CB 124.5) The Tribunal did not accept the applicant's explanation in this respect and concluded that the delay indicated that he did not have a well-founded fear of persecution but rather was seeking residency in Australia "on unfounded grounds".(CB124.6-124.8)
g)Ultimately, the Tribunal found that the applicant had no well-founded fear of Convention related harm by reason of his engagement to a Muslim woman, even if it were to attract the disapproval of either or both families. The Tribunal was not satisfied that there was any factor which, now or in the reasonable foreseeable future, might give rise to a real chance of persecutory harm for any reason.(CB 124.9-125.1)
h)There were also further alternative reasons given by the Tribunal to support its ultimate conclusion that the applicant was not entitled to a protection visa. The first was that although there are numerous shortcomings in police protection in India, the Tribunal was satisfied, taking into account the profile and resources of the applicant and his family, that they have "access to adequate and effective protection".(CB 125.2-125.5) Secondly, the Tribunal found that the applicant could, in any event, relocate within India and that it would be reasonable for him to do so.(CB 125.5-126.2)
Application for review of the Tribunal’s decision
On 31 January 2006, the applicant filed an application in this Court for a review under s.39B of the Judiciary Act, seeking an order that the respondent show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), I dispensed with a hearing under r.44.12 of the Rules and set the matter down for a final hearing. On 16 May 2006, the applicant filed an amended application. On 8 June 2006, the applicant filed a further amended application. At the hearing, Mr Silva appearing for the applicant sought leave to file a further amended application. As no objection was raised by the first respondent, leave was granted.
The further amended application contained the following grounds:
1)The Tribunal made jurisdictional error as it irrationally, illogically and unreasonably rejected an important claim of the applicant based on:
Pure speculation,
Findings against evidence, and
By taking irrelevant issues into consideration. This claim is that his fiancée's brother are fundamentalist Muslim (CB122.3)
Particulars:
(CB122.2) - The Tribunal stated that the applicant does not know the extent of the past acts of violence of his fiancée's brothers and their criminal records. There is no logical reason why he should know the extent of that as he has been mostly overseas. Further he was not totally ignorant of that.
(CB121.9) - The Tribunal stated that the applicant failed to mention that whether his girlfriend was under pressure from brothers to dress differently. The Tribunal failed to ask about this issue.
(CB121.9) - There is no basis for the Tribunal to say that an extremist male relative could have forced his sister not to wear dress like a Hindu. The Tribunal does not know how often she chose to wear such dresses and it does not know how determined a person she is in doing what she wants to do. Also there is no evidence that she wasn't so forced. The applicant was also not given specific opportunity to state about that issue in the sense that he was not specifically asked about it.
(CB121.90) - There is no evidence that the girlfriend was not under direct pressure to break off the relationship.
2)The Tribunal made jurisdictional error as it made a critical finding without evidence.
Particulars:
At page 14.7 (CB122.7) the Tribunal said that:
In any event, the Tribunal finds that, if her fiancée's family were to harm the applicant, the motivation would be personal, such as they have failed aspirations for their daughter or concern about the social and community standing.
There is no evidence that:
What the applicant's fiancée's family's aspirations were for her.
There was any difference in social or community standings between families.
Whether the fiancée's family was aware or concerned about that even if there is a difference. It is just pure speculation without any evidentiary basis.
3)The Tribunal made jurisdictional error as it:
1. Misunderstood and misapplied the test for concluding whether the applicant belongs to a particular social group.
2. Did not deal with various groups advanced before the Tribunal.
Particulars:
There seems to be a problem as it appears that the Tribunal does not seem to grasp what was put forward by the applicant adviser as to the common attributes that the particular social groups seems to share. Applying the definition stated in 36 [of applicant S] the group identified satisfies those three conditions that are required to be met by a particular social group.
4)The Tribunal made jurisdictional error as it failed to carry the statutory function it was required to under s 91R(1) and recklessly made a finding that the motive for harm was personal.
Particulars:
At page 14.6 (CB122.6) the Tribunal said that:
"With respect to religion, the Tribunal will recognise that this has a pervasive influence on the conduct in India, and is therefore difficult to isolate from personal motivations … In any event, the Tribunal finds that, if the fiancée's family were to harm the applicant, the motivation would be personal, such as their failed aspirations for their daughter or concerns about the social and community standings. The Tribunal is not satisfied that the essential and significant reason for this would be religion (although this would be a factor), any particular social group or any other convention ground."
It was not open to the Tribunal to hold that religion was not an essential and significant reason.
5)The Tribunal made jurisdictional error as it breached s 424A(1) since it failed to provide adverse information that he was required to provide to the applicant in writing for his comment.
Particulars:
The Tribunal failed to provide adverse information about the applicant it got from the protection visa application. The Tribunal said in its decision on page 16.5 to 16.9 (CB124.5 to 124.9) that:
"The applicant's significant delay in lodging the protection visa application and his return to India for five months in late 2000 - all evidenced in his passport, which was presented to the Tribunal post hearing - reinforced the finding that the applicant has not been subject to persecution in India … The applicant explained that he had sought residency in Australia on other grounds (studies and employment), and that in any event he was only after 2000 that he realised the need for refugee protection. His adviser also referred generally to negative public attitudes to refugee applicants, invited the Tribunal to take this into account as a possible reason for the delay. The Tribunal notes, however, that the applicant waited some two and a half years after his return from India before lodging his protection visa application. Furthermore, he did not discuss with anyone at all his fears or pasts experiences in India, or have any documentation - however incidental - to support the claimed past incidences. In these circumstances, the Tribunal concludes the delay does indicate that the applicant does not have a genuine and well founded fear of persecution, but rather has sought refugee protection only as a means of securing residency in Australia, on unfounded grounds."
6)The Tribunal made jurisdictional error as it:
3. In considering reasonableness of a relocation the Tribunal failed to ask a critical question, and
4. Misapplied the test for relocation.
Particulars:
The Tribunal failed to ask:
5. How capable are the fundamentalists in harming someone in a large urban area? Without asking this question the Tribunal could not have made a finding against the applicant on the relocation issue.
The Tribunal should have also considered whether it is reasonable for the applicant to relocate to an urban area with the threat from the fundamentalists.
Submissions and reasons
Mr Silva submits in his written submissions that the Tribunal rejected the applicant's main claim that he was harmed by his fiancée's brothers because of his religion, as it found that the fiancée's brothers were not fundamentalist Muslims. Since this latter finding was the basis upon which the applicant's main claim was rejected, it was a “jurisdictional fact” as it was essential to the Tribunal's lack of satisfaction that Australia owed protection obligations to the applicant. To support this claim, Mr Silva referred to the Tribunal decision and highlighted the following points:
i)The girlfriend could be expected to dress differently.
ii)Come under direct pressure to break off her relationship with the applicant.
iii)An extremist male relative could have achieved this, particularly given the long distance nature of the relationship.
iv)The applicant's failure to mention this, despite being given the opportunity.
v)The applicant's knowledge of the brother's past to be vague.
vi)Applicant does not know (through his fiancée) the extent of past acts of violence and whether they have criminal records.
In light of the above, the Tribunal is not satisfied that the applicant was threatened in late 2000 by his fiancée's brother (acting in his now dismissed capacity as a Muslim extremist).(CB121.8 - 122.4)
Mr Silva submits that the Tribunal acted irrationally, illogically and unreasonably in making the above finding as its reasoning and (especially the points identified above) showed serious flaws in logic.
Mr Silva submits that the applicant not knowing the extent of past acts of violence of his fiancée's brothers and their criminal records was made an issue.(CB 122.2) Mr Silva submits that the material below indicates that the applicant had some idea about the "criminal records" but the Tribunal did not pursue this issue:
MEMBER: And have they ever been involved in any fundamentalist groups.
APPLICANT: Yes.
MEMBER: Who? The brother?
APPLICANT: The brother, yes. And her uncles and all her cousins and the big family, you know. Dad's brothers and sisters.
MEMBER: Do any of them have criminal records?
APPLICANT: Well, yes, I mean they might have, I mean they do actually. They were more than a few riots that they went on between Shivsena and Muslims.
MEMBER: It seems to me that in those circumstances these are the type of people it would be very easy to have police prevent harming anyone really, if they have past criminal records or a record of fundamentalism, they are very easily restrained in practice? Do you understand why I gained that impression? (Transcript of Tribunal hearing, p.20.6)
The Tribunal referred to the applicant's evidence about his fiancée's brother's involvement in sectarian violence:
The Tribunal expressed surprise that the applicant and his family had not, as a local Hindu business family, sought police assistance. This was all the more remarkable if, as he had suggested, his girlfriend's brothers had a dubious past of involvement in sectarian violence. It seems likely that the police would treat such complaints seriously, and move to protect such a family.(CB115.8)
Mr Silva argued that there is no reason why the applicant would know the extent of involvement of his fiancée's brothers in criminal cases. Even if he had asked his fiancée she may not have disclosed those details. Secondly, the applicant had been away from India and may not have been up to date on that issue. Thirdly, the Tribunal did not question the extent of the criminal records. Fourthly, it was not clear what was meant by “criminal records” and whether the applicant understood what the Tribunal meant that term.
Mr Silva then addressed the Tribunal stating that the applicant failed to mention that his girlfriend was under pressure from her brothers to dress differently. Mr Silva states that the Tribunal did not explore with the applicant the nature of the relationship between his fiancée and her brothers. However, as the issue has been identified by the Tribunal as being important, it should have asked questions about that relationship. Mr Silva argued that without doing so, the Tribunal cannot hold against the applicant that he did not volunteer this information. Mr Silva identified the points raised in the first ground and submits that it is clear from the Tribunal’s reasons on those issues that they were critical to its decision:
… it follows from the Tribunal's finding above that the brother is not in fact a fundamentalist, the Tribunal is also not satisfied that he will be able to enlist the support of extremists to harm the applicant.(CB123.3)
Mr Silva submits that the above passage reinforces that the finding that the applicant’s fiancée's brothers were not fundamentalist Muslims, was fundamental to the Tribunal decision. This further underscores that this finding is a "jurisdictional fact".
Mr Johnson submits that the claim that the findings were irrational, illogical, unreasonable, "pure speculation" and "against evidence" are not appropriate descriptions. Mr Johnson argues that the Tribunal did not require a body of positive evidence to not to be satisfied by the claim. The Tribunal is not required to accept an applicant's statement merely because there is no evidence to the contrary: SZATG v Minister for Immigration (2004) 215 ALR 358 at [36] per Heerey J; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]. The effect of s.65(1) of the Act is not that the decision-maker is required to reach a decision to refuse to grant a visa only if a particular matter is established, but, that it "requires a refusal if the decision maker is not affirmatively satisfied that the criteria of the visa in question has been satisfied": SJSB v Minister for Immigration (2004) FCAFC 225 at [15].
I believe on a fair reading of the Tribunal’s reasons that the Tribunal member clearly understood the applicant’s evidence regarding the girlfriend and that it is an interfaith relationship. The Tribunal expressed concerns it had with the material put forward and the claims made. These were identified and discussed at the Tribunal hearing. I accept Mr Johnson’s submission that the Tribunal was “not affirmatively satisfied”.
Mr Johnson then referred to the applicant's claim that the Tribunal failed to ask whether the applicant's fiancée was under pressure from her brothers to dress differently. Mr Johnson submits that the Tribunal is "not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on": Re Ruddock; ex parte Applicant S154/2002 (2003) 201 ALR 437 at [58]. It is for the applicant to advance whatever evidence or argument he wishes to, and for the Tribunal to decide whether his claim has been made out: Applicant S154/2002 at [57]; Abebe v Commonwealth of Australia at [187].
In respect of the claim that the Tribunal decision was irrational and illogical, Mr Johnson submits that there have been a series of Full Federal Court decisions, after Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 which held that jurisdictional error will not be shown by mere illogicality: see NACB v Minister for Immigration [2003] FCAFC 235 at [24] - [30]; VWST v Minister for Immigration [2004] FCAFC 286 at [17] - [18]; WAJQ v Minister for Immigration [2005] FCAFC 79 at [22].
Mr Johnson submits that contrary to Mr Silva’s submissions, the transcript of the hearing does contain some support for the Tribunal's conclusion:
MEMBER: On this photo and I think also in the other ones, is there anything here that would indicate to me that your girlfriend is Muslim?
APPLICANT: No. She does that - - -
MEMBER: Because in fact she is wearing the Hindu thing?
APPLICANT: Yes, she does that for me.
MEMBER: So do you have anything that would show me that she is in fact Muslim?
APPLICANT: No.
MEMBER: Because I would observe obviously as you say she is dressed up on this occasion, but even in this photograph here, to me my observation is she once again has the marking at the top but also she is not wearing - her manner of dressing and of standing, if I may say so my observation is that she does not appear Muslim at all.(Transcript of Tribunal hearing, p.9)
The applicant was asked whether there was anything he wished to add about the Muslim fundamentalists, his family or his girlfriend's family.(Transcript of Tribunal hearing, p.14.8) The Tribunal member also said from looking at photographs of the applicant’s girlfriend, "it is not clear to me from her appearance here that she is Muslim". It noted that there was no evidence apart from what the applicant said "concerning the relationship or concerning the problems that arose from their relationship".(Transcript of Tribunal hearing, p.28) It appears from Tribunal’s invitation to "think about that" and its statement "I understand you may not be able to answer right now" that the Tribunal was prepared to receive more evidence from the applicant.(Transcript of Tribunal hearing, p.28.4) Mr Johnson submits that the Tribunal exceeded the requirements placed upon it and there is no jurisdictional error shown.
Mr Johnson contends that the applicant's submissions simply cavil with the merits of the Tribunal's fact finding. Mr Johnson observed that the applicant's submission based on its interpretation of "jurisdictional fact" was too wide. Mr Johnson submits that the applicant relied on VXDC v Minister for Immigration (2005) 146 FCR 562 per Heerey J, which appears to have been largely based on a concession by counsel for the respondent in that matter but not repeated in the present case.This is insofar as it suggests that a fact may be a jurisdictional fact because it was "essential to the reasoning by which the Tribunal came to an ultimate fact of satisfaction or non satisfaction as to visa criteria": VXDC v Minister for Immigration at [11]. Mr Johnson submits that a jurisdictional fact is no less than one which enlivens the relevant power: City of Enfield v Development Assessment Corp Commission (2000) 1999 CLR 135 at [28]. In this context that is nothing short of the Tribunal's satisfaction (if it is reached) that the criteria for a grant a protection visa are met: Minister for Immigration v SGLB at [37] per Gummow and Hayne JJ.
Mr Johnson also drew the Court's attention to the issue that there were alternative bases for the Tribunal decision, including the Tribunal's findings that effective protection would be available to the applicant in India through the police and its finding on relocation.
Mr Johnson contends that if the applicant argues that a jurisdictional error existed in respect of ground one, the Tribunal decision would not have been affected as relief could be refused on a discretionary basis because of the existence of an alternative.I do not believe that there is any dispute that past acts of violence by the fiancée’s brothers or their demands on their sister’s way of dress are important issues. However, despite being given the opportunity to submit evidence, the applicant did not present evidence or arguments on these issues. I accept the submissions of Mr Johnson that the Tribunal member was not required to pursue these issues further and consequently did not commit a jurisdictional error by not doing so.
In support of his second ground, Mr Silva referred the Court to the following:
MEMBER: Did they explain or did your girlfriend tell you why they objected to her marrying a Hindu?
APPLICANT: Because I am not Muslim, that's all, you know. That's what it's on their mind like I am not Muslim and that's it. She is not going to marry me.
MEMBER: Has your - has her family previously harmed other Muslims?
APPLICANT: Her family?
MEMBER: Yes. Have they harmed other Muslims to your knowledge?
APPLICANT: No.
MEMBER: See because whether I say, at the beginning I said the essential and significant reason for harm must be one of those five reasons and religion was one of them. I have to think through are they really harming you because of religion, do they harm all Muslims, right, or is it simply because your particular proposal to marry their daughter? In other words family honour or tradition or something like that, or it could be a different reason?
ADVISER: Sorry, maybe you are saying harming other Muslims, maybe you are saying harming other Hindus.
MEMBER: I am sorry, you are right, yes?
APPLICANT: Yes.
MEMBER: In other words what I also have to think about, if I accept your claim here is that the essential and significant reason I have to think of is it really religion because it doesn't seem that they harm other Hindus, or is it their family honour, personal dispute, all of those personal things which don't necessarily amount, fall within the convention, if you understand because the essential and significant reason here would be a family honour or personal concern, not your religion.
APPLICANT: No, but - - -
MEMBER: - - -
APPLICANT: I know what you mean but maybe it may not fall into religion but maybe it's a personal thing because personal things is because and always because I am Hindu and they are Muslims, that's the - - -(Transcript of Tribunal hearing, p.21.5)
Mr Silva submits that to succeed on the “no evidence” ground the applicant would have to show that there was no evidence at all upon which the Tribunal’s findings could have been based: Australian Broadcasting Tribunal v Bond (1990) 1970 CLR 321 at 356. The question is not therefore whether a Court on judicial review would have reached the same finding on conflicting evidence. There is no evidence on what the fiancée's family's aspirations for her were, nor on her family’s concern of difference in social or community standing between the families. Mr Silva notds here that any such difference was based on pure speculation and without evidentiary basis. Further, to succeed on the “no evidence” ground, the fact which there is said to be no evidence of would need to be a jurisdictional fact, that is, an essential preliminary finding to the decision-making process "as distinct from a fact to be adjudicated upon in the course of the inquiry": Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442 to 443; also see VXDC v the Minister for Immigration at [13]. Mr Silva argued that the fact in question would fall under the first category in Colonial Bank of Australasia v Willan.
Mr Silva referred to Minister for Immigration v Rajamanikkam [2002] HCA 32 at [56] per Gaudron and McHugh JJ:
…And when regard is had to the requirement that the decision be "based…on…a particular fact", the paragraph, in our view, is to be understood as referring to a finding of fact without which the decision in question either could not or would not have been reached. In this sense, it is, in our view, appropriate to speak of "fact critical to the making of a decision".
Mr Silva submits that there is no question that the finding about the motivation or harm being personal was essential such that, without it, the Tribunal could not have come to its conclusion.
Mr Johnson submits that the applicant appeared to concede that an absence of evidence cannot amount to jurisdictional error unless the fact is a "jurisdictional fact". No jurisdictional fact was pointed out. Mr Johnson then repeated the submissions made at [22] above. Mr Johnson drew the Court's attention to the applicant's reference to Minister for Immigration v Rajamanikkam. However, that was a case concerned with the statutory no evidence ground described in the repealed s 476 of the Act and does not pertain to the present case.
Mr Johnson argued that the applicant's complaint in respect of the “no evidence” ground is misconceived. The matter with respect to which an absence of evidence is alleged in the Tribunal's findings:
In any event, the Tribunal finds that, if the fiancée's family were to harm the applicant, the motivation would be personal, such as their failed aspirations for their daughter or concern about the social and community standard.(CB122.8)
The Tribunal had previously rejected claims that there were Muslim fundamentalists in the fiancée's family and that the fiancée's brother had threatened the applicant in late 2000. The Tribunal was also not satisfied that the brother would be able to enlist the assistance of other people who were Muslim fundamentalists, or even that the applicant faced harm from fundamentalists at all. It is submitted that the above extract from the Tribunal decision plainly did not refer to findings upon which its decision was based.
Mr Johnson submits that the assumption that the family might have concerns about social and community standing was an assumption in the applicant’s favour, at least in the sense that it envisaged a reason for the family to cause the applicant (ambient not serious) harm. Again, the words were said in the context of not being satisfied that there was a Convention reason for any harm that the applicant may have faced. Mr Johnson submits that the Tribunal not being satisfied on a particular matter does not require any positive evidence in support: NACB v Minister for Immigration; VWST v Minister for Immigration; WAJQ v Minister for Immigration.
I agree with the submission made by Mr Johnson. I am not satisfied that a “no evidence” argument can be sustained and find the submissions made on behalf of the applicant are directed at merits review. The second ground cannot be sustained.
In support of the third ground, Mr Silva referred to the Tribunal decision as follows:
The adviser later posited that it could also be for the reason of membership of a particular social group, such as "Hindu-Muslim couples planning to marry without permission", "people in mixed marriages", or "couples planning to elope". (CB117.9)
The Tribunal further stated:
Regarding the particular social groups postulated at hearing, the Tribunal notes that some of these were improvised, and did not appear to actually apply to the applicant's current circumstances. For instance, he did not expressly claim that he and his fiancée planned to elope, but rather that she would wish to join him in Australia if he were able to stay. (CB122.7).
Mr Silva then referred the Court to the transcript of the Tribunal hearing:
ADVISER: Yes, quite true, yes. Also the applicant's claim that is to be also advanced, not only based on religion but a particular social group.
MEMBER: In what manner?
ADVISER: In what sense, a political social group consisting of Hindu-Muslim couples who marry without permission of their respective families. They might constitute a particular social group in the sense they are subject to harm because of that particular reason.
MEMBER: What would be the common attribute?
ADVISER: Common attribute would be that it will be a Hindu-Muslim couple and marrying without the support of families or against the wish of the families.
MEMBER: You mentioned they would be subject to harm, but what common attributes would they have? You have described the - you have described the particular social group?
ADVISER: Yes.
MEMBER: But what attributes would they have that would set them aside from the rest of society?
ADVISER: Well, they are different because they are - the attribute is it is a mixed marriage, Hindu-Muslim as compared to a Hindu-Hindu marriage and those - the other attributes is they are marrying against the wishes of their family. In one sense - - -
MEMBER: I need to reflect on that because of what I am hearing from you is the description of a particular social group. It is not clear to me what attributes would be other than the potential subject of harm.
ADVISER: The attributes define the particular social group. The social group you would say they are different and they will have other attributes but I don't … particular social group.
MEMBER: Okay. I will certainly reflect on that.
ADVISER: Sure, and just one additional thing I was going to say. It might even be now down to couples who elope because they are not married and if that is an option the applicant seems to be considering so, the couples who elope are subjected to harsh punishment. So that is - I don’t know whether there is a narrow group applicant might fit in, but certainly that is one of the things put forward and the political opinion, member, in the sense of attribute because he is marrying a Muslim, he is being attributed a political opinion against the Shivsena. His family and him being attributed to political opinion against Shivsena in the background context of his grandfather being involved. Thank you, member, those are my comments.(Transcript of Tribunal hearing, pp.25-26)
Mr Silva submits that the Tribunal did not understand the adviser’s comments on common attributes which the social groups shared. Mr Silva took the Court to Applicant S v the Minister for Immigration [2004] HCA 25 at 36 per Gleeson CJ, Gummow and Kirby JJ at [62] to [64] and [69] per McHugh J. Mr Silva submits that although McHugh J explained why persecutory conduct in itself cannot define a particular social group for the purposes of Article 1A(2) of the Convention, the actions of the persecutors may serve to identify or even create such a group.
Mr Silva then referred the Court to a number of passages in the Tribunal decision: CB117, 119, 121. Mr Silva argued that the Tribunal did not deal with the particular social groups advanced but only made cursory remarks about them. He submits that the Tribunal is required to consider claims advanced before it: NABE v Minister for Immigration (No.2) [2004] FCAFC 236 at [58].
Mr Johnson submits that the claim of jurisdictional error focuses on the passage contained in the paragraph reproduced at [32] above, which addresses the "particular social group" test: CB 117.9. Mr Johnson submits that there is no indication in the Tribunal decision that it made an error or misunderstood the application of the test. It is argued that the Tribunal dealt with all "putative particular social groups" suggested by the applicant at its hearing. The Tribunal was not satisfied that the applicant faced a real chance of harm by reason of his membership of any of those groups. The Tribunal noted that to some extent the applicant's formulation of particular social groups at the hearing interchanged reliance on race and religion (the Tribunal gave the example of Hindu-Muslim couples planning to marry without permission) and that other putative social groups postulated at the hearing were sometimes "improvised" and "did not appear to be actually applying to the applicant's “current circumstances”. Mr Johnson submits that no jurisdictional error is established in respect of the claim raised under this ground. Further, Mr Johnson’s submissions made at [22] were repeated in respect of this ground.
I am not satisfied that ground three can be sustained. The passage from the transcript of the Tribunal hearing referred to by Mr Silva demonstrates that the member was seeking clarity from the adviser as to the attributes of the particular social group. I do not believe that the line of questioning indicates that the member did not comprehend what the adviser was proposing. Rather, the member was saying that attributes of that particular social group were not clear. I agree with Mr Johnson that the applicant is attempting merits review in this Court.
In support of the fourth ground, Mr Silva referred to the following passage from the Tribunal's findings and reasons:
With respect to religion, the Tribunal recognises that this has a pervasive influence on conduct in India, and is therefore difficult to isolate from personal motivations - - -
In any event, the Tribunal finds that, if the fiancée's family were to harm the applicant the motivation would be personal, such as their failed aspirations for their daughter or concern about social and community standing. The Tribunal is not satisfied that the essential and significant reason for this would be religion (although this would be a factor), any particular social group or any other convention ground. (CB 122)
Mr Silva submits that the meaning usually given to the word "pervasive" is "persistent", "omnipresent" or "all encompassing". In saying that the family’s motivation for harm was personal such as their failed aspirations for their daughter or concern about social and community standing, the Tribunal breached s.91R(1). Mr Silva contends that there is no evidence for this finding of the Tribunal. The Tribunal failed to ascertain the impact of religion on other aspects of one’s personal life. The Tribunal accepted that the influence of religion was pervasive and accepted that religion was one of the motivations. It also identified personal motivation and it said that the personal reasons had religious elements. However, there was no reason given why the motivation was concluded as being personal and not religious. If a decision-maker does not give any reason for his or her decision, the Court may be able to infer that he or she had no good reason: Re Minister for Immigration; Ex Parte Palmer (2003) 216 CLR 212 at [39] per Gleeson CJ, Gummow and Heydon JJ.
Mr Silva submits that it was not open to the Tribunal to hold that religion was not an essential and significant reason for the fiancée's family to harm the applicant. The Tribunal contradicted itself by saying that religion is pervasive in India, yet did not analyse non-religious personal motivation. It may be that religion forms the core for the fiancée's family failed aspirations and concern about the social and community standing.
Mr Johnson submits there was nothing reckless about the Tribunal's finding. It was for the applicant to put forward what he wished to advance and for the Tribunal to decide whether it was satisfied. The Tribunal, not being satisfied that a Convention reason was fulfilled, had no alternative but to dismiss the application. There is no substance to Mr Silva’s submission that the Tribunal breached s.91R(1) of the Act. Mr Johnson submits that s.91R(1) makes plain that there is no protection obligation unless a Convention reason, or more than one Convention reason, constitutes "the essential and significant reason(s)" for the persecution and that "the persecution involves serious harm to the person". Nothing in the Tribunal's reasons shows that it misunderstood this. Mr Johnson submits that the applicant is simply taking issue with the Tribunal's fact finding and no jurisdictional error can be shown. Mr Johnson also relied upon and repeated the submissions as set out at [22] above.
I accept the submissions made by Mr Johnson that ground four cannot be sustained as the Tribunal did not reach a level of satisfaction that a Convention reason exists on the basis of material submitted by the applicant. Further, ground four focuses on the merits of the Tribunal decision.
In respect of ground five, Mr Silva submits that the Tribunal failed to provide adverse information about the applicant it obtained from the original protection visa application:
At the conclusion of the hearing, the Tribunal flagged that it had a number of concerns about the applicant's claims, including the circumstances of his seeking refugee status, and that his claims did not appear to sit well with country information.(CB 118.3)
Mr Silva then referred to the Tribunal's findings and reasons which states:
The applicant's significant delay in lodging a protection visa application and his return to India for five months in late 2000 - all evidenced in his passport, which was presented to the Tribunal post hearing - reinforce the finding above that the applicant had not been subject to persecution in India. The applicant explained that he had sought residency in Australia on other grounds (studies and employment), and that in any event if was only after 2000 that he realised the need for refugee protection. His adviser also referred generally to the negative public attitude of refugee applicants, inviting the Tribunal to take this into account as a possible reason for the delay. The Tribunal notes, however, that the applicant waited some two and a half years after his return from India before lodging his protection visa application. Furthermore, he did not discuss with anyone at all his fears or past experiences in India, or have any documentation - however incidental - to support the claim past incidences. In these circumstances, the Tribunal concludes that delay does not indicate that the applicant does not have a genuine and well founded fear of persecution, but rather has sought refugee protection only as a means of securing residency in Australia, on unfounded grounds. (CB 124.5-124.9)
Mr Silva then referred to a discussion which took place at the Tribunal hearing:
MEMBER: Thank you. I will just give a few - I need to put you on notice about some of my thoughts, so we are transparent about this. First of all, regarding the refugee application and the delay, I will take a note of your points, but the converse doesn't necessarily apply, that - I mean I think that both points are - the question for me is whether, [SZELK], your delay in presenting a refugee application support your claim to have had a fear for so long. Okay. That is what I need to reflect on. There is a real chance test or my assessment of the credibility of your claims.
That is why I have asked you if you had any evidence of having discussed your claims prior to lodging your refugee application, if you had expressed your concerns and your fears and if you were able to demonstrate that to me now because you have waited quite a long period before presenting any refugee application in Australia and what you now say may be to support that application. I am interested to know if there is anything before that that would support your claim to have had a real fear for all this period, relating to those things?
ADVISER: May I respond, member?
MEMBER: Yes.
ADVISER: We submit, honourable member, that the applicant's mental frame needs to be understood by the Tribunal in the sense of a person who is here and has a choice of making an application for refugee status and the hostile environment as I said to the whole refugee - those fears here and those are the chances of success and where one has already an opportunity to pursue without getting a refugee status. That is a very practical consideration.
MEMBER: I should say I don’t want to interrupt you, but I want to say those are the points you made before and I will definitely reflect on those points. My point remains that I was for that reason interested to know if you had expressed your fears to anyone previously. Right. I knew you didn't express them in a refugee application because that didn't happen until September 2003. What I am interested to know is to your university counsellors by way of correspondence or email or other evidence for me that you have fear prior to September 2003 from Shivsena, from the Muslim fundamentalists or anyone else who might give you cause to fear persecution in India. (Transcript of Tribunal hearing, p.27)
Mr Silva relied on SZEEU v the Minister for Immigration [2006] FCAFC 2 for the following propositions:
i)Information provided in the initial protection visa application is not information provided for the review application to the Tribunal: at [238] to [239] per Allsop J, at [169] per Weinberg J.
ii)Adoption by the applicant at the Tribunal hearing, of what he said in written statements made at the time of the protection visa application, does not transform that information into information provided by the applicant in his application for review: at [20] per Moore J.
iii)Information contemplated under s 424A(1) and not covered under s 424A(3)(b) must be provided in writing to the applicant for his response. Orally raising the issue at the Tribunal hearing does not satisfy s 424A(1): SAAP v the Minister for Immigration (2005) 215 ALR 162 and referred to in SZEEU at [110] per Weinberg J and at [226] per Allsop J.
iv)The information must be "a reason, or part of the reason" for the decision.
v)The reason need not be an important reason so long as it is part of the reason: at [215] per Allsop J.
vi)Section 424A(1) applies to information provided earlier which is inconsistent with information provided later. It also applies to information absent in the earlier application, the absence of which is inconsistent with information provided later: at [221] to [225] per Allsop J.
vii)Once a breach of s.424A(1) is established, the Court can refuse remedy if there is a discretionary reason such as delay: at [111] per Weinberg J.
viii)Once s.424A(1) is breached, there is no need to show unfairness for the decision being set aside: at [111] per Weinberg J.
Mr Silva submits that as all of the above propositions (except for (viii)) are satisfied, s.424A(1) has been breached and a jurisdictional error occurred.
Mr Johnson argues that this approach is plainly misconceived as the provision of the applicant’s passport to the Tribunal after the hearing plainly brought the "information" in the passport within s.424A(3)(b). Accordingly, s.424A does not apply to the information. Mr Johnson then repeated his submissions made in at [22] above.
I am satisfied that the dates on which the applicant left and returned to Australia are contained in his passport as delivered to the Tribunal on 7 December 2005.(CB 118) The Tribunal’s letter to the applicant inviting him to the hearing requested that he bring his passport.(CB 69) At the commencement of the hearing, the applicant indicated that he had not done so but had left his passport at home.(Transcript of Tribunal hearing, p.2) When read in its entirety, the transcript shows that the issues raised at [45] above were discussed in detail in a lengthy exchange. I believe that the applicant provided the information by affirming relevant dates in response to questions put by the Tribunal at the hearing: NBKT v Minister for Immigration [2006] FCAFC 195 at [59] to [63].
In support of the claim of jurisdictional error in ground six, Mr Silva referred to the Tribunal decision:
The Tribunal discussed with the applicant whether it would be safe and reasonable for him to relocate within India, if he felt he was unsafe in Hyderabad. The applicant claimed that Hindu or Muslim fundamentalists could track him down anywhere: Muslim fundamentalists in particular would be able to follow leads gained through his fiancée's family as to whereabouts. The applicant claimed that his family had been able to shake off decades of adverse interest from Shivsena by moving to Mumbai (ironically, given that Maharashtra state is believed to be the stronghold of the party), yet he would be pursued by these parties anywhere in India. The Tribunal finds these assertions unconvincing. It is satisfied that even if the applicant was subject to adverse interest to fundamentalists for reason of his prospective marriage (and the Tribunal does not wish to introduce doubt into its findings about that, that is not the case), he could safely relocate in one of India's largest multicultural urban areas. The Tribunal is also satisfied - taking into account his age, education, language skills and resourcefulness, his parents' recent relocation to Mumbai and the absence of any extenuating personal or health circumstances - that it would be reasonable for him to do so.(CB 125.5-CB 125.9)
Mr Silva submits that the Tribunal failed to ask how capable the fundamentalists were of harming someone in a large urban area. Without asking this question, the Tribunal could not have made a finding against the applicant on the relocation issue. Mr Silva argues that the Tribunal it did not take relevant considerations into account in making its decision: Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ. In respect of whether the fiancée's family were to harm the applicant for personal reasons, Mr Silva submits that this situation was not one where the factor was so insignificant that a failure to take it into account could not have materially affected the decision: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at [40] per Mason J. Mr Silva also argues that the Tribunal should have considered whether it was reasonable for the applicant to relocate to a large urban area which is threatened by fundamentalists. He claims that the Tribunal did not look at this important issue: NAIZ v Minister for Immigration [2005] FCAFC 37.
Mr Johnson submits in respect of ground six that no legal error is evident as the Tribunal examined whether the applicant could relocate within India safely in the event that he was the subject of adverse interest from fundamentalists because prospective marriage, and found that it would be reasonable for him to do so. In so finding, the Tribunal rejected the applicant's arguments to the contrary "as unconvincing".(CB 125.6) Mr Johnson submits that no breach of any principle stated in NAIZ v Minister for Immigration, or any other legal error, is established.
Mr Johnson submits that as the Tribunal's relocation findings were entirely alternative, it would not suffice, for the purposes of enabling relief to be granted, that the applicant establish some feature of the relocation finding which might amount to jurisdictional error. Unless the applicant were able to establish jurisdictional error in the primary finding of the Tribunal and the finding that the effective protection would be available to the applicant through the police, the Court could refuse relief as a matter of discretion.
I accept Mr Johnson’s submission that no legal error is evident and that the applicant can relocate safely within India. I am satisfied that the Tribunal did consider the practical realities of the applicant and that there is no breach of the principles as stated in NAIZ v Minister for Immigration.
Conclusion
I am satisfied that none of the grounds of review contained in the further amended application filed at the commencement of this hearing can be sustained. The application 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 fifty-five (55) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 1 March 2007
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