SZLFQ v Minister for Immigration
[2008] FMCA 459
•17 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLFQ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 459 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal did not fail to take relevant considerations into account – Tribunal did not fail to consider claims – Tribunal has no duty to enquire – Tribunal did not apply the wrong test. |
| Migration Act 1958, ss.65, 424A, 427, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| First Applicant: | SZLFQ |
| Second Applicant: | SZLFR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2624 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 2 April 2008 |
| Date of Last Submission: | 2 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 April 2008 |
REPRESENTATION
| The First Applicant appeared in person |
| Counsel for the Respondents: | Ms B. Nolan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2624 of 2007
| SZLFQ |
First Applicant
| SZLFR |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of India and claim to be Christians. The first applicant claims that he actively promoted Christianity and was subsequently threatened and attacked by “Hindu fundamentalists”. The first applicant alleges that he sought police protection but failed to get any assistance. The applicants left India and arrived in Australia on 15 January 2007.
The second applicant is the wife of the first applicant. As she does not have claims of her own separate from those of the first applicant, the first applicant will be referred to in these reasons as “the applicant”.
The applicant claims to fear persecution in India because of his Christian faith and because of his proselytising activities.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 14 March 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 13 of the Tribunal’s decision (Court Book (“CB”) pages 95 – 104). Relevantly, they are in summary:
Application for a visa to enter Australia
At p.4 of its decision record (CB 95) the Tribunal noted that departmental records indicated that the applicant and his wife initially applied for tourist visas to visit Australia. In this application the applicant claimed to be the proprietor of a building company and supplied documentation which supported that claim.
A file note in the departmental records indicated that, following the lodgement of the applicants’ protection visa applications, the department sought to check on the details which had been supplied in connection with the application for the visa to come to Australia. The note stated, amongst other things, that an officer called the telephone number which had been given in relation to the applicant’s business and the call was answered by one of the applicant’s daughters. The note continued as follows (reproduced by the Tribunal with minor editorial amendments):
She clearly informed (us) that her parents were not employed (and did not own) any business (during) their stay in India. She informed (us that) her parents have gone to Australia to work and would not be returning at all. Questioned again about applicant’s claimed employment and she said her parents are unemployed and they have gone to Australia to work and earn money. Hence the employment references verified as counterfeit. (CB 95)
Protection visa application
In his protection visa application to the department, the applicant made the following claims:
a)in India he held a “distinguishable position” as a Christian activist opposed to the “majority Muslims”;
b)he left India because of the continued violence and attacks on civilians and the sexual abuses perpetrated against Christians by the “Muslim radicals” in Bangladesh and the “Hindu radicals” in India;
c)if he returns to India he runs the risk of being abused, assaulted and tortured. At present he is very depressed and traumatised over his helpless situation; and
d)as a minority Christian he cannot expect protection from the police and government authorities who are all from the Muslim community. The government authorities always hesitate to take action against its own, even those who commit human rights abuses.
Pre-hearing submissions
On 5 June 2007 the Tribunal received a letter from the applicant dated 1 June 2007 (CB 53) outlining the following additional claims:
a)he held a distinguished position in the All-India Catholic Union and had faced stiff resistance from Hindu radicals in Kolkata;
b)he worked for the local church and helped the poor and his Christian activities led many people to convert to Christianity;
c)these activities resulted in threats by Hindu fundamentalists, including death threats from the local Hindu leader. The applicant was dragged to the local BJP leader’s place and beaten up three times;
d)he sought police protection but failed to get any assistance;
e)he was attacked by RSS members when he refused to stop his Christian activities. They ransacked his house and injured his only son, who later died in hospital. He filed a case against his attackers and received many death threats afterwards;
f)the death of his son generated tensions in his area and thousands of Christians were forced to leave their places and businesses as a result of racial attacks. The local police did not act swiftly to counter the attacks;
g)CPI(M) supporters beat the applicant and two other Christians because they were showing a film on the life of Christ. They were accused of attempting to convert local Hindus;
h)there were several bomb explosions throughout 2006 in the Hindu Institute in north Kolkata. The Christian minority was blamed and the applicant was taken into custody along with other members of his group. He was kept in jail for one month and released on the condition that he would present himself to the police station once a week; and
i)the applicant and his family have suffered greatly because of their religious beliefs. If he were to return to India he believes that, should violence erupt between Hindus and Christians, he will face “severe harassment and serious harm in detention with possible torture and even disappearance”.
Tribunal hearing
At the hearing before the Tribunal on 6 June 2007, the applicant made the following additional claims:
a)he is Roman Catholic;
b)in an effort to convert people to Christianity, he told stories about Jesus and organised volunteers to teach people how to pray;
c)he attended a particular Catholic church in Ashfield;
d)in 2004 people from the BJP, RSS and CPM came and attacked his home at a time when he was praying and showing a video about Jesus. His son was hit in the head very severely and died a few days later. The applicant and his wife went to the police station but the police did not do anything. The applicant could not remember the month in 2004 when this happened, but later stated that the attack took place in early May, about a week or so before his son’s death on 12 May 2004;
e)this incident did not stop him from promoting Christianity;
f)the main threat to him is the CPM (Communist Party). The RSS had attacked him before and he regards the two organisations as being almost the same;
g)he had false charges levelled against him in connection with a bomb blast in 2006. He later said that he was arrested “maybe in February or March” 2006; and
h)he travelled to the UK to “have a look” at the country. He understood Australia was a better country to travel to and so he sought to come here.
In relation to the alleged attack in 2004 and the subsequent death of his son, the applicant submitted as evidence a death certificate, a receipt for money paid for a funeral, and a number of photographs taken at a funeral. The Tribunal noted that:
a)the applicant was not pictured in any of the photographs but his wife was;
b)the receipt and photographs indicated that the funeral was conducted under the auspices of a Christian church; and
c)the death certificate stated that the deceased person was a Christian.
The second applicant gave the following evidence at the hearing before the Tribunal:
a)she has been a Roman Catholic since birth and has been baptised and “undergone” first communion;
b)her son was attacked in January 2004, about four or five months before his death on 12 May 2004. The same people have attacked the house again and asked for money;
c)the death certificate made no mention of any physical attack because she and her husband had asked that it not be included;
d)her husband was arrested on 5 May 2006 in connection with a bomb blast which occurred on 3 May 2006 at a placed called Subashnager; and
e)she was involved in the church and did various activities which caused people to threaten them.
The Tribunal drew the applicant’s attention to inconsistencies in various versions of his personal history and claim for protection.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and 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 a person of the applicant’s limited knowledge of Christianity would have been actively involved in proselytising in the wider community, noting that:
i)he provided no evidence to support his claim to have been actively involved in any Christian organisation;
ii)while photographs of his son’s funeral demonstrated that the applicant and his family had some association with the Roman Catholic Church, his answers at the hearing about the nature of his involvement as an active promoter of Christianity among people of the Hindu religion were very unconvincing; and
iii)his answers regarding his personal understanding of his claimed faith were such that the Tribunal concluded that the applicant had only a limited association with the Christian Church;
b)in his written claims the applicant asserted that his “only son” was killed in an attack on his residence by people opposed to his religious activities, however, at the hearing the applicant acknowledged that he had a second son. In the Tribunal’s eyes this undermined the credibility of his written claims;
c)the Tribunal accepted that one of his two sons died in May 2004, but found that the applicant’s son died from natural causes and not as a result of any attack on the family home, noting that:
i)the death certificate which was provided by the applicant at the hearing states the cause of death as “cardio-respiratory failure in epilepsy with schizophrenia”;
ii)if his son died as a result of criminal violence, the Tribunal would have expected the death certificate to have stated that explicitly; and
iii)at the hearing the applicant and his wife gave conflicting evidence about the timing of the attack which allegedly led to the death of their son. Had there actually been such a significant event the Tribunal would have expected the applicant and his wife’s answers to be more consistent in relation to it;
d)the Tribunal’s finding that the applicant’s son died as a result of natural causes further undermined the credibility of the applicant’s claims that he and his family were subjected to attack for reasons of religion;
e)the Tribunal found that the applicant was not arrested and charged, or even suspected of involvement, in relation to the bomb blasts, noting that:
i)in his protection visa application the applicant signed a declaration to the effect that he was not the subject of any criminal investigation or of any pending criminal charges, which was inconsistent with his claim that he was arrested in early 2006 on charges relating to an alleged bomb blast and was currently out on bail;
ii)he and his wife gave conflicting evidence about the timing of the alleged bomb blast and of his alleged arrest. Had the applicant been arrested as claimed, the Tribunal would have expected the applicant and his wife’s answers about the timing to be more consistent; and
iii)the Tribunal was unable to find any evidence to confirm that such a blast took place, much less that the applicant was identified as a suspect in relation to it;
f)the only detailed information the applicant provided about alleged acts of harm directed at him related to the alleged incident in 2004, when he claimed his son was killed, and his alleged arrest in 2006. The applicant did not provide any independent evidence which would corroborate his claims;
g)the Tribunal concluded that the credibility of the applicant’s claim that he was subject to persecution in India for reasons of religion had been seriously undermined;
h)given the very limited knowledge he displayed at the hearing about Christianity, the Tribunal found that:
i)the applicant did not take part in activities to promote Christianity outside the church; and
ii)he would not have a profile in the wider Indian community as a Christian; and
he would therefore not be at risk of persecution for reasons of religion because of his association with the Christian church.
i)the Tribunal found that, were the applicant to return to India in the reasonably foreseeable future, he would not involve himself in proselytising activities;
j)the Tribunal accepted the departmental file note as an accurate account of a conversation between an officer and the applicant’s daughter and found that:
i)his daughter made no mention of any fear of persecution which may have motivated the applicant and his wife to travel to Australia; and
ii)had the applicant genuinely feared persecution and had that fear been a reason for the applicant’s travel to Australia, the Tribunal would have expected the applicant’s daughter to be aware of it.
On this basis the Tribunal found that the applicant came to Australia for economic reasons and not because of any genuine fear of persecution in India;
k)the Tribunal concluded that the applicant had no fear of persecution in 2006, noting that he returned from Europe to India voluntarily in October 2006 after the alleged attack on the family home and after the alleged laying of false charges against him; and
l)the Tribunal noted that the applicant stated in his written claims that he feared Muslim extremists in Bangladesh, a claim which he did not pursue at the hearing. In any event, the Tribunal found that as the applicant and his wife had citizenship rights in India, there was no reason for him to fear being returned to Bangladesh.
Proceedings in this Court
The grounds of the amended application can be summarised as follows:
a)the Tribunal did not take into account certain relevant considerations or integers central to the applicant’s claims;
b)the Tribunal failed to consider the applicant’s claims;
c)the Tribunal failed to investigate the applicant’s genuine claims;
d)“The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome. The Tribunal used the all information for matter of reasoning and evaluation of my case for protection visa”;
e)the Tribunal focused on irrelevant issues and ignored relevant material; and
f)the Tribunal applied the wrong test.
Tribunal failed to take into account relevant considerations
No particulars have been supplied of the allegation that the Tribunal failed to consider the applicant’s claims or an integer of them and a review of the Tribunal’s decision record discloses that this allegation has no substance. It is apparent that the detail of the claims made by the applicant and the second applicant were considered in some detail. The Tribunal sets out what was contained in the protection visa application and the evidence which was given at the Tribunal hearing, together with the documents which were supplied by the applicant at that hearing. The Tribunal’s decision record discloses that the Tribunal considered the substance and detail of the claims which were made by the applicant. Indeed, before proceeding to take evidence, the Tribunal confirmed its understanding of the key elements of the applicant’s claims by reading out a précis which the applicant and the second applicant accepted as a fair summary of their situation and claims.
As the summary of the Tribunal’s decision set out above discloses, the elements of the applicant’s claim to fear persecution in India were set out, considered and dismissed.
The first asserted ground of review does not disclose jurisdictional error on the part of the Tribunal.
Tribunal failed to consider claims
The second asserted ground of review is very similar to the first but is particularised in the following terms:
(a)The tribunal did not consider the applicant who had been under immense and intimidating pressure from Hindu fundamentalist RSS, BJP and CPI(M).
(b)In relation to above the Tribunal did not consider the applicant’s claim that his distinguishable position as an All-India Catholic Union member and Christian activist resulted in threats by Hindu Fundamentalist. The Tribunal failed to acknowledge that in India Roman Catholic teaching are different than in Australia.
Contrary to the applicant’s allegations, the Tribunal did consider the factual claims which he particularised as having not been considered. The question of whether the applicant was under “immense and intimidating pressure” from the RSS, the BJP or the CPI(M) turned on whether the applicant was accepted to have been, in India, a practising and proselytising Roman Catholic, which is the second point which the applicant said was not considered. As this latter issue was the essence of the applicant’s claim, far from being ignored by the Tribunal it was the subject of detailed consideration. The summary of the Tribunal’s decision set out above at [16] makes this clear. Having concluded that the applicant was not a practising and proselytising Roman Catholic, his related claim to have been intimidated by Hindu fundamentalists and the CPI(M) fell away and did not need to be considered other than to be dismissed, as it was at CB 107.
Consequently, the second asserted ground of review is not made out.
Tribunal failed to investigate
The applicant submits that the Tribunal failed to ask his children about his religion and persecution and that the conversation said to have taken place with his daughter in India was a fabrication. The latter point was also stressed in oral submissions at the hearing. However, the Tribunal was not requested by the applicant to make inquiries of his children and so there is no issue of discretion under s.427 miscarrying. Indeed, given that the matter concerning the applicant’s daughter arose out of departmental inquiries made in India and is recorded in a departmental file note reproduced at CB 32 – 34, there is no apparent reason why the Tribunal would have, or ought to have, queried the veracity of the information supplied by the department in this connection. It is to be noted in passing that the applicant was invited by a s.424A(1) notice dated 6 June 2007 (CB 82 – 84) to comment on the information contained in the departmental file concerning its officer’s conversation with the applicant’s daughter. As the Tribunal’s decision record discloses at CB 106, no substantive response was received to that s.424A(1) notice.
Further, although the Tribunal has power to make inquiries, it is under no obligation to exercise that power except in very limited circumstances, which are not present in this case.
In essence this ground complains that the Tribunal did not do something which the applicant ought to have done, namely, obtain evidence from members of his family. The matter which the Tribunal had to decide was whether it was satisfied under s.65 of the Act that the applicant met the criteria for a protection visa. In a practical sense it is incumbent, in his or her own interests, for an applicant to put before the Tribunal the information which he or she says should satisfy it of the applicant’s entitlement to a protection visa. It is not for the applicant to complain that the Tribunal did not do something which the applicant should have done himself or herself.
Country information
This ground is a formulaic one which appears from time to time in applications such as these. To the extent that this ground means anything, the first element of it appears to allege that the Tribunal preferred “general information” which it gathered, rather than country information when reaching its conclusion. In this case, no country information was relied upon by the Tribunal, nor did it gather “general information”. The decision which the Tribunal reached was based on an assessment of the credibility of the applicant and his evidence as received by the Tribunal at the hearing. There was no country information before it.
This asserted ground of review discloses no basis upon which the Tribunal’s decision might be set aside.
Tribunal focused on irrelevant issues and ignored relevant material
This allegation is not particularised and, for the reasons discussed in relation to the first and second asserted grounds of review, it is not made out.
Tribunal applied the wrong test
The applicant has particularised this allegation as follows:
(a)The Tribunal left out individual elements of the applicant’s claims and tested weather [sic] they individually amounted to persecution rather than look at the claim as a whole [to] determine whether the claim so considered amounted to persecution.
(b)By requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in fact, placing to [sic] high an onus of proof on the applicant and failed to give the applicant the benefit of the doubt.
Those particulars are also ones which appear from time to time in proceedings such as these.
As to the first of the particulars of the allegation, it has not been identified what had been “left out”. To the extent that this particular asserts that some relevant matters were not considered by the Tribunal, for the reasons set out in relation to the first asserted ground of review, such an allegation cannot be made out. To the extent that this first particular asserts that the Tribunal considered individual elements of the claim discretely, rather than the claim as a whole, it does not reflect the way the Tribunal reached its decision. Certainly the Tribunal did consider the evidence, as it had to, and there is no error in considering the various matters raised by the evidence in some form of sequence. In this case, all those elements were drawn together in the Tribunal’s ultimate conclusion where it said:
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. (CB 108)
Consequently, on the facts, this ground cannot be made out.
As to the second particular, the Tribunal did not require the applicant’s evidence to be independently corroborated. No aspect of the Tribunal’s decision reflects such an approach. It was the applicant’s own inconsistent evidence which was the source of the Tribunal’s lack of satisfaction that he met the criteria for a protection visa. Although the Tribunal did observe that the applicant had failed to provide corroborating evidence, that failure was not the reason why it was not satisfied that the applicant met the protection visa criteria. The Tribunal’s comments to this effect were made to record that there was no evidence before it which might have caused it to have second thoughts regarding its disbelief of the applicant.
Consequently, the final asserted ground of review is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 17 April 2008
1
1