SZEXI v Minister for Immigration
[2005] FMCA 1531
•17 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEXI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1531 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicants are father and son from India – claim of well-founded fear of persecution for reason of religion – applicants are Christians who claim persecution by Hindu fundamentalists – serious harm – where RRT not satisfied that the incidents constituted serious harm or mistreatment – no official quality to the actions against the applicants – RRT found that the applicants had access to adequate and effective protection from the Indian authorities – threats in the form of declarations of intent on their own do not prima facie constitute serious harm for the purpose of Migration Act 1958 (Cth), s.91R. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91R; 475A |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed VBAO v Minister for Immigration [2004] FMCA 268 referred to Minister for Immigration & Multicultural & Indigenous Affairs v VBAO of 2002 [2004] FCA 1495 followed |
| First Applicant: | SZEXI |
| Second Applicant: | SZEXJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2188 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 October 2005 |
| Date of Last Submission: | 11 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ginges |
| Solicitors for the Respondent: | Ms Burnett Clayton Utz |
ORDERS
Leave granted to join the Refugee Review Tribunal as Second Respondent.
The application is dismissed.
The Applicants are to pay the First Respondent’s costs fixed in the sum of $5,375.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2188 of 2004
| SZEXI |
First Applicant
| SZEXJ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision made by the Refugee Review Tribunal on 22nd June 2004 and handed down on
29th June 2004, affirming a decision of a delegate of the Minister for Immigration not to grant protection visas to the applicants.
Background
The applicants are a father and son from India. They are both adults who belong to the Dalit caste and the Christian religion. They arrived in Australia on 29th October 2003 and lodged applications for protection (class XA) visas on 19th November 2003. They claimed that they left India to save their lives and escape from the persecution and harassment of Hindu fundamentalist groups. In a typed statement annexed to their applications, they told of having been abused and beaten by members of a Hindu group called the RSS. They also said that the police did not support them because they followed the Government’s views about religious affairs.
The applicants attended a hearing before the Refugee Review Tribunal on 5th April 2004. They both gave oral evidence. The first applicant, the father, told how he worked for a religious organization called the Sathya Veda ministries from 1989. He described how he preached the Gospel and served the poor in the cities of Hyderabad and the Telangana region of Andhra Pradesh.[1] He said that his activities were a cause of concern to the RSS and other Hindu conservatives, and a campaign started against him. He told the Tribunal that he had been beaten, harassed and threatened. In April 2003 he was attacked by the Boya community, which led him to fear for his life. In May 2003 an RSS group assaulted his son, and he himself was assaulted the following day and warned to stop his son’s activities. As a result, he decided to leave the country.
[1] Court Book page 121
The second applicant, the son, told how he had worked as a youth volunteer for the Sathya Veda Ministries from 2000 until 2003. He said that he had been assaulted in 1999, 2000 and 2003 by RRS supporters and that he and his father had been threatened with death.
The applicant’s migration adviser provided a written submission to the Tribunal in support of their claims. The adviser’s submission also claimed that relocation within India “was not a viable option since the applicants did not have any relatives living elsewhere and were targeted by groups such as the RSS which had a network all over India. There was therefore no part of India to which the applicants could be reasonably expected to relocate in order to avoid a real chance of persecution”.[2]
[2] Court Book page 124.
The Tribunal found that the applicants are citizens of India and accepted that they had been active in social work associated with their affiliation to the Sathya Veda Ministries. The Tribunal also accepted that incidents described by the applicants in July 1999, July 2000,
April 2003 and May 2003 had occurred, “Given their plausibility in the light of the independent country information cited above and the consistency of both applicants’ testimony in relation to these incidents”.[3]
[3] Court Nook page 141
The Tribunal was not satisfied, however, that the incidents described constituted serious harm or mistreatment directed at the applicants of the kind described by the Tribunal at page 119 of the Court Book:
“For example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s. 91R (2) of the Act”.
The Tribunal noted that whilst the applicants had claimed that they had been threatened with death and feared that they would be killed on their return, the Tribunal’s finding that the harm suffered by the applicants in the past had been relatively minor led the Tribunal to the finding that “there is not a real chance that the applicants’ lives or liberty will genuinely at risk on their return to India despite the threats to their lives which they claim to have been expressed by Hindu extremists.”[4]
[4] Court Book page 142.
The Tribunal also found that the applicants would have the protection of the authorities in India if they faced such threats on their return[5] and that the independent country information set out “the capacity and willingness of the Indian authorities to combat violence associated with inter-communal and inter-religious tension…”[6] The Tribunal found that the applicants did not have a well-founded fear of persecution within the meaning of the Refugees Convention.
[5] Court Book page 143
[6] Court Book page 144.
The Tribunal referred to the decision of this Court in VBAO v MIMIA [200] FMCA 268 that a threat to life prima facie constitutes serious harm within the meaning of s.91R. I note that an appeal against this decision has since been successful. In Minister for Immigration & Multicultural & Indigenous Affairs v VBAO of 2002 [2004] FCA 1495, Marshall J held at [37] and [40] Parliament did not intend that threats in the form of declarations of intent can prima facie, on their own, constitute serious harm.
Marshall J went on to say at [41]:
All instances of alleged serious harm have the potential to agitate their victim but this is not the hallmark of their categorization as instances of serious harm. Rather, serious harm contemplates that a parson’s livelihood or well-being will be jeopardized in a material way. This is not to deny that threats of the kind directed at the respondent can never constitute serious harm, but they do not, of themselves, automatically qualify for that description.”
The applicants’ application
The Applicants’ amended Application, filed on 23rd December 2004, sets out three grounds of review. The first ground is:
The purported decision of the Refugee Review Tribunal is null and void because of error of law and failure to take into account relevant consideration and consequently constructively failed to exercise the jurisdiction.
The particulars given are no more than a contradiction of the Tribunal’s factual findings that there was no official quality to the harassing and threatening actions of the RSS and other conservative Hindus and that the applicants could expect the protection of the Indian authorities if they faced such threats on their return. In my view, this is no more than an attempt to review the merits of the decision and the Court has no jurisdiction to do so (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). This ground of review must fail.
The second ground of review is:
The Tribunal expressly accepted all the claims of the Applicant. However, its purported decision is null and void because they asked the wrong questions and identified the wrong issue in making the ultimate finding. It failed or acceded (sic) to exercise its jurisdiction.
The particulars given in support of this ground are that the Tribunal “erroneously made a finding on the issue of the Indians authorities’ willingness and to combat violence associated with inter-religious tension…It is not an inter-religious tension effected to Applicant but something more serious and affected him subjectively and objectively.”
Again, this is no more than a challenge to the Tribunal’s factual finding. It is an attempt at a merits review and, as such, is beyond the Court’s jurisdiction, as set out in Wu Shan Liang (supra). It follows that this ground of review also fails.
The third ground of review is:
The Tribunal decision is void as it interpreted the terms of the Migration Act wrongly and erred in law. It also breached the inviolable (sic) limitations.
The particulars given for this ground are essentially that the Tribunal misunderstood and misapplied s.91R of the Migration Act. The issues argued by counsel for the Applicants are that:
a)The Tribunal fell into jurisdictional error in coming to a mistaken conclusion about the incidents and facts which it accepted as true, that threats to the Applicants’ lives were not ‘serious threats’ within the meaning of the Migration Act; and
b)The Tribunal fell into jurisdictional error in failing to apply s.91R properly to the circumstances of the case.
Conclusions
In my view, the Tribunal did not fall into jurisdictional error when it held that the threats to the Applicants did not constitute ‘serious harm’ for the purposes of s.91R of the Migration Act. The Tribunal’s understanding of s.91R appears to me to be in accord with that set out in Minister for Immigration & Multicultural & Indigenous Affairs v VBAO (supra), which is a decision that is binding on this Court.
It was open to the Tribunal to find that the various incidents described by the Applicants, whilst unpleasant and frightening at the time, were not sufficiently serious to constitute serious harm within the meaning of s.91R. This is a factual finding, and one that cannot be challenged in this Court.
It was also open to the Tribunal to find, on the basis of the independent country information, that the authorities in India would take action against people who threatened violence or acted violently against others for reasons of religion. This is also a factual finding, and one that cannot be challenged. The Applicants’ third ground of review fails.
I have previously stated, in paragraphs 13 and 16, that the Applicants’ first and second grounds of review fail.
There is no jurisdictional error. The decision of the Refugee Review Tribunal is a privative clause decision under s.474 of the Migration Act. The application will be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 17 October 2005
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