SZIFF v Minister for Immigration
[2007] FMCA 106
•13 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIFF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 106 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, s.91X |
| NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 |
| Applicant: | SZIFF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 280 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 1 February 2007 |
| Date of Last Submission: | 1 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2007 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 280 of 2006
| SZIFF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 2 April 2006, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) handed down on 10 January 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 11 October 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:
In the application for protection visa the applicant states that he was born in India in 1976 and is Punjabi, Hindu. He indicates that he travelled to Australia in July 2005 using a passport issued in India in his name, a copy of which is provided with his application. He states that he left his country legally through Delhi airport and did not have any difficulties getting his travel documents. He indicates that his father, mother, brother and sister reside in India. He gives as a previous address, an address in Goa but does not state when or how long he lived at that address. He states that he obtained a Bachelor of Arts qualification in 2003 in India. He does not provide details of his occupation or profession prior to coming to Australia and at the question in the form which asks for details of past employment he indicates that these details are “not applicable” to him. He does state that he helped his father with farming in India but claims that the farm had to close as it was boycotted because the family was discriminated against. (Court Book (“CB”) page 62).
The applicant claims to have been persecuted and to fear future persecution in India at the hands of upper class Hindus and others because he is of a lower caste.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-5 of the Tribunal’s decision (CB 62-63). Relevantly, they are in summary:
a)lower caste Hindus are regularly discriminated against in India. They cannot get employment, and in extreme cases, their houses are set on fire and they are burnt alive;
b)the applicant formed a committee to protect the rights of lower caste Hindus and to protest against the inhumane treatment of these Hindus;
c)the applicant, his colleagues and other office bearers of his committee were bashed and humiliated;
d)Hindu “hardliners” including the RSS and the BJP are against him;
e)the applicant has had false charges brought against him and he has been beaten by Hindus of the upper class; and
f)he has been “confined without lawful reasons” and persecuted because of his race, his caste and because he was a member of a particular social group.
On 8 November 2005 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application and that it was unable to make a favourable decision on the basis of that information alone. The applicant was invited to give oral evidence and present arguments at a hearing on 12 December 2005 (CB 48-49).
The Tribunal was advised in writing by a form dated 6 December 2005 that the applicant did not wish to come to the hearing and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. (CB 51-52).
As a result, the Tribunal proceeded to determine the matter on the basis of the material available to it.
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:
… the applicant’s claims are essentially untested assertions and are unclear and lacking in detail in important respects. Although he claims that he formed a social committee to uphold the rights of low caste Hindus and launched protest rallies, he gives no details of when and where these events took place and over what period of time he was involved with the committee. Also he says he was bashed, that there were many false cases against him, that he was “confined” illegally and persecuted many times but does not give any details of times, places, how many times these events occurred, the nature of the false cases or how he secured his release from the illegal confinement. Although he says that Hindu “hard liners” including the RSS and BJP are against him he does not give any details or explain what he means by this statement. He does not explain how, if there were false cases against him, he managed to leave India legally through Delhi airport travelling on a passport in his own name which he indicates that he had no difficulties obtaining. (CB 64-65)
The Tribunal was further of the view that:
… it would be expected that further details about the applicant’s claims, together with some clarification of the matters referred to above, would be forthcoming from the applicant, either in writing in the applications or orally at a hearing, if his claims were genuine and could be substantiated. As at the date of decision there is no persuasive evidence before the Tribunal that enables it to be satisfied that there is a real chance that the applicant will face serious harm for the purposes of the Convention, from upper caste Hindus, police/authorities or from any one else, because of his race, his caste, his political opinion, because he is a member of a particular social group or for any other Convention reason, either now or in the reasonably foreseeable future, if he returns to his country. (CB 65).
The Tribunal’s conclusions were summarised in the following passages:
The Tribunal cannot be satisfied that the applicant was beaten, discriminated against, humiliated and/or that his father’s farm was boycotted as he claims for the reasons that he claims. It cannot be satisfied that the applicant formed a social committee to protest about the rights and treatment of lower case [sic] people in India, nor that members of certain political groups were opposed to him.
The Tribunal cannot be satisfied that the applicant will suffer harm/be persecuted for the reasons that he claims if he returns to his country. The Tribunal is not satisfied that the applicant cannot or will not return to India because he fears persecution there, now or in the reasonably foreseeable future for the reasons that he claims. (CB 64)
Proceedings in this Court
The grounds of the amended application can be summarised as follows:
a)the Tribunal failed to take into consideration the fact that the applicant was an active member of a social group persecuted by another social group, and had been arrested, detained, kidnapped and bashed in the past;
b)the Tribunal failed to take into account that the authorities of his country gave him no protection but were working under the direct control of the persecuting social group; and
c)the Tribunal failed to make findings in relation to the applicant’s claims of persecution and the connivance of state authorities, in particular, whether or not these events might occur again and whether or not the applicant had a well-founded fear of persecution on the basis of these claims.
In his written submission the applicant raised further grounds:
a)the Tribunal did not consider the issues submitted by the applicant; and
b)the Tribunal erred by not correctly applying the proper test for, or definition of, “refugee”.
At the hearing the applicant submitted that the Tribunal should have taken account of the fact that his passport had been issued in Goa, rather than in his home state of Haryana.
Lack of satisfaction
Before dealing with the specific grounds raised by the applicant it is appropriate to recognise, as recounted above, that he did not attend the hearing proposed by the Tribunal. In this regard, the Tribunal wrote to the applicant on 8 November 2005 in the letter reproduced at CB 48-49 of which the first paragraph said:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
In reply to this the applicant returned a form entitled “Response to Hearing Invitation”, reproduced at CB 51, in which he had ticked a box saying:
No, I/we do not want to come to a hearing.
I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it.
As it was entitled to do, the Tribunal did proceed to make a decision without taking any further action to allow or enable the applicant to appear before it.
Having considered all the evidence which was before it, namely the department’s file, the applicant’s application to the Tribunal and having regard to the material referred to in the decision of the delegate (CB 62) the Tribunal found that it was not satisfied on the evidence that the applicant had a well-founded fear of persecution within the meaning of the Convention.
A situation similar to the one seen in these proceedings occurred in NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119. In his reasons for judgment in that case, Allsop J (with whom Conti J agreed) said at [52]-[56]:
If the Refugee Review Tribunal (the Tribunal) comes to the view, apparently within the bounds of reason, that, having considered the papers, it is not satisfied that Australia owes protection obligations to an applicant such as the appellant, it is required to inform the applicant of that fact and invite him or her to a hearing to put his or her case.
That was the position here. Such an invitation was given.
The appellant did not take up that invitation.
The Tribunal remained unsatisfied of the relevant matter to which I have referred.
In those circumstances, unless the Tribunal somehow misdirected itself, or otherwise failed to comply with the Migration Act 1958 (Cth) (the Act) or other applicable law, ss 36 and 65 of the Act, read together, required the refusal of the visa.
Allsop J further explained the issues seen in these proceedings in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29] saying:
… The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because it subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detailed and extrinsic explanation which had been invited. …
Similarly in this case, the Tribunal’s decision is characterised not by findings but, rather, by an inability to make findings. The failure of the applicant to accept the Tribunal’s invitation to attend a hearing deprived him of the opportunity to supply, and the Tribunal of the opportunity to receive, additional information which could have led the Tribunal to the position where some positive findings were open to it. In the circumstances, the evidence before it did not permit the Tribunal to reach the “specified mental state” ie. satisfaction that the applicant had a well-founded fear of persecution.
Grounds of review
Dealing in turn with each of the asserted grounds of review:
The Tribunal failed to take into consideration the fact that the applicant was an active member of a social group persecuted by another social group, and had been arrested, detained, kidnapped and bashed in the past
Referring to the protection visa application form, the Tribunal records the following at pages 4 and 5 of its decision (CB 62-63):
The applicant states that he left India because he belonged to a low caste of Hindus, and was discriminated against to an extreme degree in India in many ways because of his caste. People from his caste have been burned alive and their houses set on fire. They are unable to get employment because of their race. The applicant states that he formed a committee upholding the rights of low caste Hindus and launched protests and rallies against the inhumane treatment of low caste Hindus. Hindu “hardliners” including the RSS and BJP are also against him. Christians have been killed by extremists and upper class Hindus who believe they are the only class of Hindus who have rights to rule. “The social organizations of the applicant could not live long as the applicant and his colleagues and other office bearers” were bashed and humiliated. The applicant was charged with false cases and beaten by Hindus of the upper class. The applicant also states that he “was confined without lawful reasons” and persecuted many times because of his race, his caste and because he was a member of a particular social group. He came to Australia to save his life; his life was in danger in his country.
The essence of these claims are discussed in the first paragraph of the Tribunal’s “Findings and Reasons” (CB 63). Therefore the Tribunal did consider the matters which the applicant says were not considered and, on the facts, this ground is not made out.
The Tribunal failed to take into account that the authorities of his country gave him no protection but were working under the direct control of the persecuting social group
Although in his amended application the applicant states that official authorities in India are working under the direct control of upper-class Hindus, he does not make such a claim in his protection visa application forms (CB 1-26) nor in his application to the Tribunal for review (CB 42-45). There is no error on the part of the Tribunal in not considering material which was not put before it.
As to Indian authorities not giving the applicant protection the Tribunal did advert to this claim saying:
He also seems to be claiming that he was harmed by, and fears further harm from, authorities in India; he states that there were “false cases” against him and that he was “confined” without lawful reasons. (CB 63)
Consequently this material which was placed before the Tribunal was considered by it and this ground, on the basis advanced, must fail.
The Tribunal failed to make findings in relation to the applicant’s claims of persecution and the connivance of state authorities, in particular, whether or not these events might occur again and whether or not the applicant had a well-founded fear of persecution on the basis of these claims
As discussed in paragraphs 15 to 19 above, the Tribunal had inadequate information before it upon which it could reach the necessary level of satisfaction that the applicant was beaten, discriminated against, humiliated in the past or would be persecuted in the future. Consequently, this ground fails.
The Tribunal did not consider the issues submitted by the applicant
A review of the Tribunal’s decision indicates that such information as the applicant had furnished in support of his application for a protection visa was before the Tribunal and considered by it. As to whether this information amounted to proof of previous persecution or information which would justify the applicant having a well-founded fear of persecution for a Convention reason were he to return to India, was also expressly considered by the Tribunal.
Consequently, on the facts, this ground fails.
The Tribunal erred by not correctly applying the proper test for, or definition of, “refugee”
Under the heading “Definition of ‘Refugee’” the Tribunal provided an adequate summary of the relevant test at CB 60-62. As a result, the Tribunal did not misdirect itself as to the proper test to be applied and this ground is not made out.
At the hearing the applicant submitted that the Tribunal should have taken account of the fact that his passport had been issued in Goa, rather than in his home state of Haryana
From the bar table, the applicant submitted that there was significance in the fact that his passport had been issued in Goa rather than Haryana, and commented that caste was taken into consideration when issuing passports in Haryana but it was not in Goa. Whether or not this is the case, it was not something raised with the Tribunal for its consideration. That being so, the fact that the Tribunal did not consider the issue or its significance does not amount to jurisdictional error.
Conclusion
At the end of the day, the various grounds of review advanced by the applicant fail in their own right but are also irrevocably and fatally weakened by the applicant’s failure to accept the Tribunal’s invitation to place further information before it at the hearing which it foreshadowed. Having failed to provide further information it is hardly surprising that the Tribunal had insufficient information before it to be able to be satisfied that the applicant is a refugee.
In the circumstances of this case the applicant has failed to demonstrate jurisdictional error on the part of the Tribunal.
Consequently, the application will be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate: Parisra Thongsiri
Date: 13 February 2007
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