SZHUL v Minister for Immigration
[2007] FMCA 91
•8 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHUL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 91 |
| MIGRATION – Persecution – Review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, ss.91X, 424 |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 A v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 56 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasinghan (2001) 168 ALR 407 NABE v Minister for Immigration & Multicultural & Indigenous Affairs [No. 2] (2004 144 FCR 1 VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 VWFP and VWFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231 Applicant A v Minister for Immigration & Ethnic Affairs (1996-1997) 190 CLR 225 Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 |
| Applicant: | SZHUL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3633 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 9 November 2006 |
| Date of Last Submission: | 9 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms S.A. Sirtes |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3533 of 2005
| SZHUL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application filed on 6 March 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) handed down on 22 November 2005 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 21 July 2005 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
The applicant claims he is a citizen of India and was born and educated in the Indian state of Tamil Nadu. He is 49 years of age, speaks Tamil, is of Tamil ethnicity and is a Muslim. He described his occupation and gave a history of employment as “businessman”. The applicant married in 1981 and his wife and children are still living in Tamil Nadu together with his parents. With respect to previous addresses the applicant claimed that he was born and grew up in Tiruchaparalli in Tamil Nadu. He claims he then moved with his family to Saraspur in Gujarat in 1992 returning to Tiruchaparalli in December 2003.
The applicant arrived in Australia on 28 August 2004 travelling on an Indian passport and entered Australia on a temporary business visa issued in Mumbai in July 2004. (Court Book “CB” pages 96-97.)
The applicant claims to have been persecuted and to fear future persecution in India because of his Muslim religion.
The matters alleged in support of the applicant’s claim for a protection visa are set out on pages 4-13 of the Tribunal’s decision (CB 96-105). Relevantly, they are in summary:
a)when the applicant’s family relocated from Tamil Nadu to Gujarat for business purposes in 1992, they made contact with about 50 Muslims from Tamil Nadu and the applicant’s father became involved in religious and social welfare. The applicant also became involved in volunteer social work as did his younger brother. The group collected funds for the building of a mosque for Tamil Muslims in Tamil Nadu. The applicant claims that the RSS [“Rashtriya Swayamsevak Sangh” – Association of National Volunteers] noted their activities;
b)in February 2002 following the Godhra train incident, riots broke out in Gujarat and Muslims were killed and properties destroyed;
c)in February/March 2002 at about 11am a gang of armed Hindu extremists entered the applicant’s shop, destroyed showcases, took all the money in the shop and attacked the applicant, his father and his brother;
d)the attackers stated that the family were spies for Pakistan and trying to set up a Muslim state in Gujarat. They asked the applicant if he was collecting money to build a mosque. The applicant claimed that his brother was stabbed to death during this incident and that he and his father ran away and hid in a Muslim house nearby;
e)the applicant and his father went to the police station about 5 hours later. However the police refused to help them and instead chased them away with a severe warning;
f)the family decided to leave Ahmedabad and return to their original home in Tamil Nadu. The applicant claims that the family had lost their life savings and lived on the charity of friends and relatives;
g)on 15 December 2003, a group of armed men who could be identified as members of the RSS broke into their house in Tamil Nadu and ransacked it and alleged that the family were Pakistani spies and should leave the country. The attackers gave the family dire warnings. They attacked the applicant and said that he had been trying to build a mosque in Ahmedabad; and
h)the applicant decided to leave the country and come to Australia. He left India on 28 April 2004.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant in the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant and his family had moved from Tamil Nadu to Gujarat or that he had lived in Saraspur for 10 years. In this regard the Tribunal observed that the applicant lacked knowledge of the area and its mosques, geography, landmarks and features. In this respect the Tribunal did not accept that the applicant’s inability to speak Hindi was the reason he lacked such local knowledge;
b)the Tribunal found the alleged reasons for the family’s move to be implausible. It did not accept that the family were beaten, their property destroyed or the applicant’s brother killed in riots and noted that the applicant was unable to provide any documentary evidence of his brother’s death and gave evidence on this issue with little visible emotion and did not elaborate on the circumstances of the death or burial. The Tribunal concluded that the claim in respect of the brother’s death was fabricated;
c)the Tribunal did not accept that the applicant was a member of an active Muslim Welfare Association in Gujarat and did not accept that the applicant had been targeted by RSS members by reason of his earlier activities in Tamil Nadu;
d)the Tribunal did not accept that the alleged riots in Tiruchaparalli took place at the time claimed by the applicant noting that there was no independent evidence of such riots;
e)the Tribunal accepted that in recent years there had been an increase in religious tension and that there had been some incidents of violence which had caused the applicant and his family unease. However, the Tribunal accepted independent country information that the Indian government is committed to protecting its religious minorities and promoting interfaith tolerance; and
f)the Tribunal accepted that the state was able to provide reasonable protection against Hindu extremist groups such as the RSS and did not accept that the applicant faced a real chance of harm amounting to persecution should he return to India.
In summary, the Tribunal did not find the applicant to be a truthful or credible witness:
I formed the view that the applicant was unprepared to be tested on the specific details of his claim and found it difficult to fabricate those details because he had no experience to draw upon to give that specific evidence. (CB 111)
Proceedings in this Court
The grounds of the application can be summarised as follows:
a)the Tribunal erred in affirming the decision of the delegate and failed to take account of country information and evidence produced by the applicant;
b)the Tribunal wrongly failed to accept the applicant as a truthful witness and wrongly found that certain matters had been fabricated to support the applicant’s claims for refugee status;
c)the Tribunal wrongly held that the applicant had never moved to Ahmedabad from Tamil Nadu;
d)the Tribunal wrongly rejected the applicant’s assertion that his brother had been murdered;
e)the Tribunal wrongly held that India protects its minorities and saves them from persecution; and
f)the Tribunal wrongly found that if the applicant’s country of nationality provides the level of protection which the applicant is entitled to expect according to its national standard then the applicant will not satisfy the Convention even if there remains a well-founded fear.
Dealing with each of these grounds in turn:
The Tribunal erred in affirming the decision of the delegate and failed to take account of country information and evidence produced by the applicant
The applicant says that this alleged conduct on the part of the Tribunal amounted to a denial of natural justice. The Tribunal’s statutory natural justice obligations are set out in ss.422B-429A of the Act. Relevant to this ground, s.424(1) provides:
In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
In order to succeed in this ground, the applicant must, as a threshold matter, identify what relevant material was before the Tribunal but not taken into account by it. The applicant has not done this. He has not identified what evidence or information was before the Tribunal but not taken into account by it and thus this ground fails at the threshold issue.
But in any event it is not necessary in the articulation of its reasons that the Tribunal refer to every piece of evidence and every contention made by an applicant: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 per the Court at 641 [46].
Further the applicant is, in effect, seeking a review of the Tribunal’s conclusions based on the evidence which it used to arrive at those conclusions. In a passage which has relevance to these proceedings, French J said, Lindgren and Stone JJ agreeing, in A v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 56 at 8:
The Tribunal in a lengthy decision … gave detailed consideration to the salient breaches of all that material. The failure to refer to this particular matter of submission by the first applicant on the part of the Tribunal does not constitute an error of law which is reviewable by this Court. What the first appellant really invites us to do is to re-enter the consideration of the merits of the matter, a course from which we are precluded by the limits of our jurisdiction.
Those jurisdictional limits apply equally here in that it is not open to this Court to conduct a reconsideration of the Tribunal’s findings of fact.
The Tribunal wrongly failed to accept the applicant as a truthful witness and wrongly found that certain matters had been fabricated to support the applicant’s claims for refugee status
The Tribunal’s decision turned in large part on its adverse findings as to the applicant’s credibility. The applicant challenges such findings but credibility findings are not matters for judicial review in proceedings such as these. As McHugh J said in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasinghan (2001) 168 ALR 407 at 423 [67], findings on credibility are the function par excellence of the Tribunal.
In the circumstances it is not open to the Court to review the Tribunal’s decisions as to the applicant’s credibility and this ground fails.
The Tribunal wrongly held that the applicant had never moved to Ahmedabad from Tamil Nadu
This ground is addressed to a factual finding made by the Tribunal. As already noted, findings of fact are not matters which are reviewable in these proceedings, but this comment may be qualified by saying that the position would be different if the fact in question was a jurisdictional fact, which is not the case here. As the Full Court of the Federal Court said in NABE v Minister for Immigration & Multicultural & Indigenous Affairs [No. 2] (2004) 144 FCR 1 at 16-17 [53]:
It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
‘Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.’
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481 [35] per
McHugh J.In relation to the applicant’s assertion that the Tribunal’s conclusion on this issue was illogical, a consideration of the Tribunal’s reasons reveals a consideration of a number of relevant facts and matters, the applicant’s ignorance of which the Tribunal considered undermined his credibility, given that the applicant said that he lived in the area for ten years:
I would expect that a person who had lived in a particular location for 10 years would have a reasonable knowledge of the geography, landmarks, hospitals, airports and railway stations in his particular area. I would expect him to know his own street address and that of his business. I would expect him to be aware of major events which occurred in the state in which he was living. As an active Muslim I would expect him to be aware of the locality and name of well known mosques in his own area and that of the city of Ahmedabad and to be aware of the location of Muslim neighbourhoods. The applicant was not able to give me any of this information. There is no evidence before the Tribunal of the existence of the school, hospital and mosque he named in his evidence. The [sic: He] was not aware that the suburb of Saraspur is close to the centre of the city of Ahmedabad, is also located near the central railway station and relatively close to the well known Sabarmati River which flows through Ahmedabad and is crossed by a number of bridges. (Ahmedabad City Map) I do not accept that the applicant’s inability to speak Hindi is the reason that he lacks the knowledge referred to above. (CB 111)
A consideration of this passage does not reveal a want of logic on the part of the Tribunal. The conclusion which it reached was available to it based on the evidence before it. However, even if illogicality had been evident, a want of logic in the reasons of the Tribunal is not of itself an available ground of review: VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 by the Full Court at [16]-[18]. The applicant has failed to identify a legal deficiency supposedly caused by the alleged illogicality which would amount to jurisdictional error on the part of the Tribunal: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Gleeson CJ at 62 [9]; VWFP and VWFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231 per Young J at [81]. In reality, all the applicant is arguing is that the Tribunal should have drawn a different conclusion from the evidence before it.
For the above reasons, jurisdictional error on the grounds asserted is not made out.
The Tribunal wrongly rejected the applicant’s assertion that his brother had been murdered
This ground contests the factual finding of the Tribunal on this point and implies illogicality, on the part of the Tribunal in arriving at its conclusion. For the reasons set out in relation to the preceding ground advanced by the applicant, jurisdictional error is not shown in respect of this asserted ground of review.
The Tribunal wrongly held that India protects its minorities and saves them from persecution
Again, the applicant contests a factual finding reached by the Tribunal. For the reasons already set out above, judicial review of the Tribunal’s decision is not available on this basis and the applicant has not demonstrated that the Tribunal’s decision is affected by jurisdictional error in this respect.
The Tribunal wrongly found that if the applicant’s country of nationality provides the level of protection which the applicant is entitled to expect according to its national standard then the applicant will not satisfy the Convention even if there remains a well-founded fear
The applicant must show that he has a “well-founded fear of being persecuted” which must be persecution by the country of his nationality or persecution which that country is unable or unwilling to prevent (Applicant A v Minister for Immigration & Ethnic Affairs (1996-1997) 190 CLR 225 per Brennan CJ at 233). As the Chief Justice said in Applicant A’s case:
Thus the definition of “refugee” must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee’s nationality. (at 233)
Or as McHugh J said at 257-258:
The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge to those groups who, having lost the de jure or de facto protection of the government, are unwilling to return to the countries of their nationality.
On this issue, the Tribunal said:
I accept that in recent years that there has been an increase in tension between religious communities and that that there have been incidents involving violence between different religious groups in Tamil Nadu. I accept that such incidents have made the applicant and his family uneasy and that he is unhappy with the present situation for Muslims in India. However as I put to the applicant, the country information, which I accept, indicates that the national government of India is committed to protecting its religious minorities and to promoting interfaith tolerance. India is a longstanding democracy with a functioning system of policing and an independent judiciary. There are constitutional guarantees of freedom of religion and there are a number of authorities and commissions which administer a system of human rights compliance. The state of Tamil Nadu has its own Human Rights Commission and has recently repealed controversial anti conversion laws which were regarded as unfavourable to religious minorities in the community. The election of the Congress dominated national government in 2004 has resulted in an even greater focus on protection of minority religious interests. Further there is no evidence of discrimination against Muslims which would amount to persecution. There are also several authorities and commissions which administer laws which prohibit discrimination on the grounds of religion. (CB 113-114)
The Tribunal’s conclusion that there was no evidence of discrimination against Muslims which would amount to persecution was open to it on the evidence. Further, the test for persecution articulated and discussed by the Tribunal and reproduced at CB 95 and 113 did not misstate the law – see also Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1.
But, even if the Tribunal had misunderstood the relevant test in the fashion asserted by the applicant, its disbelief of the applicant was the decisive factor in its decision. At the end of the day, the Tribunal did not believe the applicant’s version of events or that he had suffered the persecution in India which he claimed.
This ground of the application is also not made out.
Conclusion
For the above reasons the applicant has not demonstrated jurisdictional error on the part of the Tribunal. Consequently, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate: Parisra Thongsiri
Date: 8 February 2007
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