SZIAA v Minister for Immigration

[2006] FMCA 443

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIAA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 443

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming particular social group persecution in India – applicant not claiming to be a member of a particular social group but claiming a fear of harm by members of a group – RRT arguably misunderstood the distinction – no jurisdictional error as RRT rejected the factual basis of the claim.

Applicant: SZIAA

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG5 of 2006

Judgment of: Driver FM

Hearing date: 31 March 2006

Delivered at: Sydney

Delivered on: 31 March 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms T Quinn

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG5 of 2006

SZIAA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”).  The decision was handed down on 8 December 2005.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  Relevant background information is set out in the Minister's written submissions filed on 17 March 2006.  I adopt as background paragraphs 2 to 8 of those written submissions:

   The applicant is a male citizen of India born on 7 June 1976.[1]  He arrived in Australia on 16 May 2004 and applied for a protection visa on 10 June 2004.[2]  His claims were set out in a statement accompanying the application.[3]  A duplicate copy of the application was also provided at a later date.[4]  The application was refused on 1 July 2005.[5]

   [1] court book, page 33

   [2] court book, pages 1 to 34

   [3] court book, pages 26 to 32

   [4] court book, pages 37 to 69

   [5] court book, pages 75 to 81

   The applicant applied to the RRT for review of the original decision on 27 July 2005.[6]  The applicant gave oral evidence before the RRT on 14 November 2005.[7]  The RRT handed down its decision on 8 December 2005.[8]

   [6] court book, pages 82 to 85

   [7] court book, page 93

   [8] court book, pages 100 to 108

   The applicant's claims

   The applicant's claims were contained in a statement accompanying his protection visa application,[9] and in the evidence he gave before the RRT.[10]  He claimed that:

   [9] court book, pages 26 to 32

   [10] court book, pages 104 to 105

   a)He and a friend helped arrange a marriage for another friend to a girl of a different caste.  The girl's brother [Raja] threatened them and took their pharmacist qualification certificates.  They approached the police, who obtained the certificates and returned them. 

   b)However, the police later discovered the dead body of the applicant's friend (who had helped arrange the marriage) on a rail track.  As there was no evidence, the police found it was suicide, but he believed his friend was killed by Raja because he had no reason to commit suicide.

   The decision of the RRT

   Although there was no supporting evidence, the RRT accepted that the applicant and his friend were involved in arranging a marriage which caused friction amongst family members due to caste differences.  It accepted that the bride's brother threatened them and stole their certificates.  It also accepted that his friend was subsequently killed in a rail accident.

   The RRT did not accept that the applicant's friend was murdered by the bride's brother, and found that it was a suicide according to the police conclusion.

   The RRT considered the situation if his friend had been murdered, and found that the applicant would be afforded state protection.

   a)When he reported to the police that Raja had stolen the certificates, the applicant's evidence was that the police took action and returned them.

   b)He could also find adequate state protection elsewhere in the state of Tamil Nadu, which had a population of more than 40 million so it would be unlikely he would be found by Raja.

   c)It concluded that India could provide a level of protection which the applicant was entitled to expect according to international standards.

   The RRT also found that because of the personal and family related nature of the applicant's claims, any harm that he would suffer would not be for a Convention reason.

2. The applicant relies on his amended application filed on 27 February 2006.  That application sets out 11 grounds of review but they are not particularly helpful.  In general terms the applicant disputes the outcome of his review application.  As I explained to the applicant, the Court cannot review the merits of the RRT decision.  It is not for the court to decide whether he is a refugee.  The Minister's written submissions deal with the grounds advanced by the applicant in paragraphs 14 to 18. Subject to what I say below, I adopt those paragraphs with necessary amendments for the purposes of this judgment:

   It should be noted at the outset that this is not a decision in which adverse credibility findings (or findings related to any other inconsistencies or contradictions in the applicant's evidence) has any role to play in the RRT's decision.  The RRT accepted, at face value, the claims made by the applicant, and considered whether those claims (which it also considered in the alternative) resulted in the conclusion that the applicant was a refugee.  In circumstances such as these, the applicant must establish that the RRT has committed a legal error in the application of the Refugees Convention in order to succeed upon judicial review.

   Ground 3 is not made out on a reading of the RRT decision.  The decision commences by accepting some parts of the applicant's evidence, but rejecting other parts because there was no substantive evidence.  In particular, the RRT did not accept that the applicant's friend was murdered.  It then went on to consider what if it was wrong, and that the applicant's life was at risk from the bride's brother.  It found that the applicant would have effective protection throughout India, and that he could easily move elsewhere in Tamil Nadu, a state of 40 million people, to avoid the harm he feared.  It also concluded that the harm feared by the applicant was not for a Convention reason.  While the RRT decision is not a long one, it demonstrates that the RRT considered all of the applicant's claims.

   Ground 4 is also not made out.  The RRT clearly gave the applicant the benefit of the doubt.  It accepted some parts of his evidence despite there being no supporting evidence, and also considered the situation if it was wrong about the parts of his evidence that it did not accept.

   Ground 7 does not take into account what the actual findings of the RRT were.  It is true that the applicant complained to the RRT that he would not be able to live in other states in India because of language and cultural difficulties.  The RRT finding, however, was that the applicant would have adequate protection because in a state of 40 million, he would be able to relocate and find protection within the state.  The RRT's relocation finding, which was included as support for its effective protection finding, took into account the difficulties the applicant might have moving to another state in India.

   The RRT decision relies on a number of bases, none of which appear to be infected with jurisdictional error.

   a)First, the RRT found that there was insufficient evidence that the applicant's friend was murdered.  This was a permissible finding, given that the only evidence before the RRT was statements made by the applicant himself.

   b)Second, the RRT found that the applicant would receive effective state protection.  It noted that the police had acted previously when he complained about the threats and the theft of his certificates.  This was also a reasonable finding of fact by the RRT.

   c)Third, the RRT noted that the applicant lived in a state of 40 million people, and would be able to move somewhere in that state where he could find adequate protection.  This took into account the applicant's concerns about relocating, which were all about relocating to other states.  It was a reasonable finding on the evidence before the RRT.

   d)Fourth, the RRT did not consider the harm feared by the applicant to be for a Convention reason.  The RRT had clarified with the applicant at the hearing what he was claiming, and had even questioned him about whether he considered himself to be part of a particular social group.  The RRT considered whether or not there was a Convention reason, and concluded that there was not.

3. Ground 2 in the amended application asserts that the RRT failed to see that the applicant satisfies the criteria for article 1A(2) of the Convention.  There is, in my view, a question in this case whether the RRT has correctly applied the Convention and whether there has been a constructive failure to consider the applicant's claims by reason of misunderstanding the Convention.  On page 105 of the court book the presiding member said:

   It was explained to the applicant that the cause of his persecution had to be for a Convention reason.  The Tribunal found no evidence of that.  The applicant's evidence is that he was threatened because he assisted in arranging a marriage contrary to the wishes of the bride's family.  The applicant agreed that this was the substance of his claim.  The Tribunal then asked whether the applicant claimed persecution because he was a member of a particular social group.  He replied that he did not belong to any group and was not making that claim. 

4. It is open to argument that the presiding member did not appreciate the significance of the applicant's claim.  The applicant claimed to fear harm not because of his membership of any particular social group but rather because of the particular social group of his alleged persecutors.

5. Article 1A(2) of the Refugees Convention relevantly provides that refuge should be accorded to a person who, owing to a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or owing to such fear is unwilling to avail himself of the protection of that country.

6. The only relevant Convention ground here was membership of a particular social group.  In my view, in order to consider the risk of being persecuted, decision-makers must not limit their consideration to the attributes of the person claiming persecution. Decision-makers must also consider the attributes of those who the person claiming protection claims to fear.  A person may be persecuted not because of his own race, religion, nationality, political opinion or membership of a particular social group but because of the race, religion, nationality, political opinion, membership of a particular social group of his persecutors.

7. In the present case the applicant feared harm from members of the Vanniyar caste.  He feared that harm because he had assisted a member of that caste to marry outside the caste.  This squarely raised in my view a claim of persecution by reason of membership of a particular social group.  Again, the question was not the applicant's membership of any group but the membership of his alleged persecutors.  The presiding member gave no consideration to that issue.  A real question arises therefore about the validity of the RRT decision.  However, for the reasons that follow, I do not consider it is open to me to find jurisdictional error on the face of the decision.

8. Under the heading "Findings and Reasons" the RRT made three findings.  The first was that the RRT did not accept the applicant's core claim that his friend and co-conspirator was murdered by members of the Vanniyar caste.  Having rejected that core factual claim it did not matter whether the applicant's fear stemmed from his membership of a group or the membership of others in a group.  The RRT found that the applicant's fear of harm from members of the group was not well‑founded because his friend was not murdered but committed suicide.

9. Secondly, the RRT found that in any event effective state protection would be available in India, including in the applicant's home state.  The presiding member's reasoning is not as clear as it might have been and the finding made by the presiding member appears to have depended in part upon country information that is not identified.  Nevertheless, it is unnecessary for the RRT to specify in its reasons all of the factual material that is relied upon.

10. Thirdly, the RRT found that the dispute between the applicant and the members of the family of the woman who married outside her caste was personal and family related.  If, indeed, the dispute was a personal one and not based upon caste rules then it could not be Convention related.  It was, in my view, open on the material before the presiding member for him to find that the dispute was personal and not caste related.

11. I find that the decision of the RRT is free from jurisdictional error.  It is therefore a privative clause decision and the application must be dismissed.

12. The application having been dismissed, costs should follow the event.  Ms Quinn, for the Minister, has properly informed me that the Minister's actual costs incurred are less than those that would be recoverable under the Court's costs scale.  The Minister seeks costs fixed in the sum of $2,800.  The applicant did not wish to be heard on the question of costs.

13. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $2800.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date:  6 April 2006