SZLPG v Minister for Immigration

[2008] FMCA 820

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLPG v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 820

MIGRATION – RRT decision – Indian claiming political persecution including police collusion – duty on Tribunal to make findings on truth of history – evidence at hearing to be given proper, genuine and realistic consideration – element in claim not addressed – jurisdictional error found – matter remitted.

Migration Act 1958 (Cth), ss.430, 430(1)

Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470
SZIIF v Minister for Immigration & Citizenship [2008] FCA 913

Applicant: SZLPG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3419 of 2007

Judgment of: Smith FM

Hearing date: 12 June 2008

Delivered at: Sydney

Delivered on: 12 June 2008

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr G Kennett

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 11 October 2007 in matter 071486518. 

2. A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 18 May 2007. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3419 of 2007

SZLPG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia in April 2007.  On 19 April 2007 he lodged an application for a protection visa, which he appears to have completed for himself.  His application set out his reasons for seeking protection in Australia so that he did not have to return to India. 

2. He claimed that he was a Muslim from Kerala, and had been attracted by the political opinions of a Muslim party and had joined the Indian Union Muslim League (IUML) in his district.  He said: “I always felt that the State government did not govern for the interest of Muslim people”.  He said that he worked very hard for his party, and was elected as the secretary for his area branch in 2000.  He explained how this made his profile apparent to members of the opposing party, and he claimed that he had received threatening phone calls, in particular from the opposing CPI(M) members and supporters.  He said:  

   I had been told by the CPI(M) member, if I continue to do my activities for my party I would be killed.  I was very scared and fearful for the safety of myself and my family.  I wanted to get help from police but I had been told that if I pay them RS 200,000, they could protect me for while. 

3. He claimed that he was perceived as a person with a political opinion opposed to the majority of Hindus and the government’s discriminatory policy towards the Muslims, and that for the last two or three years he had been attacked and robbed by the CPI(M) members.  He claimed that if he returned to India: 

   My fear that as I was perceived as a possible sympathiser or a person links with a Muslim radical movements because of my membership and position as secretary of Indian Union Muslim League, I had been accused as a person who motivate the poor Hindi people convert to Islam.  The CPI(M) member accused me for that and with the help of extremist they ransacked my business.  I filed case against them, but nothing happened.  I had been told, if I continue to stay in India, they will kill me. 

   He said that he had no belief that he could get any protection or support in India “as I had previous occasions in the event of any further attack or violence at this time”. 

4. No supporting evidence for his claims was presented to the Department of Immigration, and a delegate refused them on 18 May 2007.  The delegate pointed to the absence of “verifiable detail”, which led the delegate “to believe the applicant does not have a significant adverse political or religious profile in his local community and his situation is not as claimed”. 

5. The applicant appealed to the Tribunal, and attended a hearing on 30 August 2007.  A transcript has not been tendered by either party, and the Court must rely upon the Tribunal’s own brief description of the hearing.  It said:  

   At the hearing, the applicant affirmed that his fear of persecution in India was based on the consequences of his political opinion and religion.  He said that his business in Kerala no longer exists, his father has passed away and he fears persecution by people associated with the communist CPI(M) Party if he returns to India.  He said that since the CPI(M) Party came to power in Kerala, they have used the police to harass him.  He was once detained overnight without charge by the police.  On 2 other occasions the police came to his home but he was absent. 

   The applicant said that he had held the position of Secretary of the IUML in [district].  He passed to the Tribunal an untranslated handwritten statement on IUML letterhead which he said was by the IUML district committee and which he claims affirms his position in the party and states that he cannot remain in his district peacefully because of threats by his “opponent’s party”.  (The Tribunal subsequently (on 14 September 2007) received a handwritten statement in English on IUML [district] District Committee letterhead which affirms the applicant’s position as Secretary of the IUML for the [district] area, states that the applicant suffered “harassment and attacks from opposition parties on several occasions” and “even now is facing threatenings of attack from them”.)  

   The applicant said that the CPI(M) Party was still the governing party in Kerala and the police were beholden to them.  He said that he had received threats by CPI(M) members directly and by phone to the effect that if he continued his IUML activities he would be killed.  He said that on one occasion he had been attacked by CPI(M) members in his shop and on another occasion while travelling.  He had been cut on the forehead in one of these attacks.  He had sought protection from the police but they had responded that he would only be protected if he paid them 200,000 rupees. 

   The applicant said that the threats and attacks by CPI(M) members were largely motivated by his success in attracting new members, including Hindus, to the IUML. 

6. The Tribunal said that it put to the applicant some general country information from the Department of Foreign Affairs and Trade, which suggested that “Kerala is a law abiding state where legal recourse is available to those who feel threatened and persecuted”, and “if supporters of registered parties in India are subject to political persecution from rival political parties or other agents, they generally have recourse through the Indian legal system”.  The Tribunal noted that “the applicant disagreed with this advice and claimed that it was not practicable to obtain protection from the authorities and courts because they were beholden to the ruling party in government”.  

7. The Tribunal handed down a decision affirming the delegate’s decision on 11 October 2007.  Its findings and reasoning are found in five paragraphs which it set out under the heading “Findings and Reasons” (numbering added): 

   1.The applicant claims that he has been persecuted by CPI(M) Party members, the police on behalf of CPI(M) which is the governing party in Kerala, and other unidentified people because he is a Muslim and an office holder and effective activist on behalf of the IUML, a Muslim‑based political party.  He fears persecution for his political opinion and religion if he returns to India.  In particular, he fears that he is at risk of “detention, torture and even disappearance” and that CPI(M) members will “deal with me and kill me.”  

   2.The applicant has provided very little evidence to support his claims at the hearing and in his protection visa application.  The Tribunal has attached little weight to the handwritten statements on IUML letterhead provided by the applicant at the hearing and on 14 September 2007 since there is no additional evidence (other than the applicant’s claims) corroborating its content and authenticity. 

   3.Having regard to the independent evidence available to the Tribunal and referred to at the hearing (US State Department, International Religious Freedom Report 2006 in relation to India; DFAT Country Information Report No 446/99, dated 25 January 2000, CX39662; DFAT cable ND9681, dated 8 July  1998, CX30520) the Tribunal does not accept that the applicant is unable to avail himself of the protection of the relevant authorities in India.  Based on this independent evidence, the Tribunal is also satisfied that the Indian constitution provides for freedom of religion, and the national Government generally respects this right in practice.  The Tribunal considers that the applicant’s claimed political and religious beliefs would not prevent him from availing himself of the protection of the relevant state protection and judicial authorities in India.  The Tribunal notes that Muslims constituted around 13.4 per cent of India’s population and accepts US State Department advice that India is a secular state and that relations between various religious groups are generally amicable among the substantial majority of citizens. 

   4.The Tribunal accepts DFAT’s advice that Kerala is a law abiding state where legal recourse is available to those who feel threatened and persecuted (DFAT Country Information Report No. 303/98, CX31297); and that if supporters of registered parties in India are subject to political persecution from rival political parties or other agents, they generally have recourse through the Indian legal system (DFAT Country Information Report No. 368/98, CX32164).  The Tribunal also accepts DFAT advice that, while it was true that there were periodic outbreaks of communal violence in India, throughout India, where communal violence had occurred, the Indian authorities had sought to end it at the earliest opportunity; and that persons considered to be inciting communal violence could be prosecuted under Indian law (DFAT cable ND9681, dated 8 July 1998, CX30520). 

   5.Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant has a well‑founded fear of persecution for his political opinion and/or religion and/or any other Convention reason if he returns to India.  It follows that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention; and the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa. 

8. The applicant now asks the Court to set aside the Tribunal’s decision, and to send the matter back for further consideration.  I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error.  I do not have power myself to decide whether the applicant is a refugee or should be given permission to stay in Australia. 

9. The applicant invited me to receive further information corroborating his claims, but I indicated to him that it was not relevant for me to receive this.  He would have the opportunity to give it to the Tribunal only if I remitted the matter. 

10. Among numerous contentions made in an amended application is the contention that “the Tribunal member failed to consider my genuine claim”. 

11. This raises a point, which I had flagged with the representatives of the Minister at an earlier directions hearing, as to the significance of the absence from the Tribunal’s reasons of any expressed findings which assessed the truth of the applicant’s claimed history of persecution by his political opponents with the complicity of the police force.  In particular, the Tribunal made no findings to indicate whether it accepted the truth of the applicant’s claim implicit in his original application and expressly made at the hearing, that the political party in power in Kerala “have used the police to harass him”. 

12. The duty of the Tribunal to assess the truth of a history of persecution presented to the Tribunal at a hearing has been emphasised in several High Court judgments.  Recently in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470, Gleeson CJ said at [9]:

    An important purpose of the hearing was to enable the Tribunal to do just what it ultimately did, that is, make a judgment about whether the appellants were worthy of belief. 

13. Gummow J at [37] recorded a concession by counsel for the Minister: 

    In certain circumstances, including those of this case, s 425(1) obliged the RRT to “give the applicant an opportunity to appear before it to give evidence”.  Counsel for the Minister accepted that it is implicit in the reference in s 425 to a hearing where evidence may be given that the challenge to the decision under review by the RRT be given a proper, genuine and realistic consideration in the decision to be subsequently made by the RRT.  

14. It is therefore normally incumbent on the Tribunal to address the evidence given by an applicant about his history of persecution.  If it is not addressed with specific or general findings, the Tribunal must explain why it has not found it necessary to make findings as to the truth of the applicant’s claims. 

15. The role of findings about past events, when deciding whether in the future a refugee claimant would face a well‑founded fear of persecution, was explained in the majority judgment in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574‑575. Their Honours suggested that, at least in some cases, a Tribunal was bound to make such findings. At 574 they said:

    In determining whether there was a real chance that Mr Guo would be persecuted for a Convention reason, the Tribunal had no choice but to form an opinion as to what was likely to occur if Mr Guo was returned to the PRC.  In the course of determining whether there was a real chance of persecution for such a reason, the Tribunal made findings about past events and the motivation of the Chinese authorities in penalising Mr Guo, as it was entitled and, indeed, bound to do (s 166E(1) of the Act).  It then used those findings as the basis for its conclusion that there was no chance of future persecution.  But that does not mean that it decided the well‑founded fear of persecution issue on the balance of probabilities.  (emphasis added) 

16. Their reference to s.166E(1), is to the predecessor of current s.430(1) which includes the obligations on the Tribunal to set out in its written statement of reasons “the findings on any material questions of fact” and to refer to “the evidence or any other material on which the findings of fact were based”.  At 575 their Honours explained the importance of such findings, as “an integral part of the process” of determining the future chances of persecution.  They said: 

    Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing.  In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.  It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.  In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not “differentially at risk for a Convention reason.” Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC. 

17. This passage was cited by Gleeson CJ and McHugh J in Abebe v Commonwealth (1999) 197 CLR 510 at 544–545 [83], in the context of particular claims put forward by Ms Abebe which involved a claim of persecution by government agents. Their Honours said:

    The prosecutor carried no onus of proof in relation to these matters, and the fact that she might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that her claim for refugee status must fail.  As Guo (1997) 191 CLR 559 at 575‑576 makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non‑occurrence is a relevant matter in determining whether an applicant has a well‑founded fear of persecution. The Tribunal “must take into account the chance that the applicant was so [persecuted] when determining whether there is a well‑founded fear of future persecution”(Guo (1997) 191 CLR 559 at 576). However, given the nature of the prosecutor’s claim, the tribunal was entitled – indeed bound – to start its inquiry by considering her claim that she had been arrested by government officials for political reasons.  (emphasis in original) 

18. Their Honours’ subsequent reasoning made the point that the Tribunal’s rejection of the credibility of a significant element in the claimed history justified its ultimate conclusion.  They said at [86]: 

    Once the Tribunal made the findings which it did in relation to the prosecutor’s claim of being arrested for her or her husband’s political opinions, her claim of having a well‑founded fear of persecution for reasons of political opinions inevitably failed. 

19. In the present case, in my opinion the claims made by the applicant, in particular of involvement of government agents in his political harassment, required the Tribunal to make findings about whether it accepted this and other elements in his history. 

20. Counsel for the Minister contended that the Tribunal had made such findings implicitly.  He did not submit that the history had been rejected, and properly conceded that this could not be found in its reference in paragraph 2 to “very little evidence to support his claims”.  Rather, counsel argued that the Tribunal implicitly accepted or assumed the truth of the applicant’s history, before finding that state protection would be available to him if he returned to India. 

21. He referred me to the sentence in paragraph 3 of the above quoted passage, where the Tribunal said: 

    The Tribunal considers that the applicant’s claimed political and religious beliefs would not prevent him from availing himself of the protection of the relevant state protection and judicial authorities in India.  … 

22. However, in its own terms this sentence addressed only the applicant’s claimed “political and religious beliefs”.  It did not address his claimed past history of persecution by political opponents, nor explain how he could be expected to receive protection against a repetition of his harassment by the police if he returned to Kerala.  Moreover, the Tribunal’s next sentence, referring to India’s population containing 13.4 per cent of Muslims, does not suggest that the Tribunal was, in that paragraph, addressing the applicant’s claimed history of persecution in Kerala. 

23. Counsel for the Minister also relied upon the Tribunal’s acceptance of general country information from DFAT in paragraph 4 of its reasoning. 

1. In its terms, it is true that acceptance of that advice is inconsistent with the acceptance of the applicant’s history as giving rise to a well‑founded fear of persecution in the future.  However, the Tribunal does not explain how it reconciled the applicant’s particular history of political persecution assisted by agents of the State, with the necessarily qualified nature of the general advice from DFAT, if indeed it assumed the truth of the applicant’s history.  

2. In the absence of any implicit rejection of the applicant’s history of persecution by agents of the State, it is impossible to conclude that the Tribunal properly considered the implications of that personal history.  If it was true, it is difficult to see how the Tribunal could rely upon the generality of DFAT’s advice, at least to the extent of excluding a “real chance” of a repetition of his political persecution if he returned to Kerala.  

3. I am driven to conclude that the Tribunal did not give genuine and proper consideration to the applicant’s evidence to the Tribunal at the hearing.  I note that the concept of “proper, genuine and realistic consideration” has not been supported in the Full Court of the Federal Court as a separate ground of jurisdictional error (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [51]). However, statements in the High Court in NAIS at [9], [37], and [171]‑[172], suggests that this might need further consideration (and see Weinberg J in SZIIF v Minister for Immigration & Citizenship [2008] FCA 913 at [98]). I am bound to prefer what was said more recently in the High Court, over observations in the previous decisions of the Full Court.

4. In any event, I am persuaded that the omission from the Tribunal’s reasoning of any discussion of the applicant’s particular claim, that police had been used by his political opponents to harass him, should give rise to the inference that this particular element of his claim was not addressed, and that the Tribunal probably overlooked it when arriving at its conclusions.  Such an inference is permitted from the absence of relevant findings (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75]) in circumstances where the Tribunal is under statutory obligation to set out findings on material questions of fact.

5. I accept that such an inference should be drawn cautiously, and that the Court needs positively to be persuaded that there was a failure to address an element in the claim.  However, the Tribunal’s reasoning appears cursory and superficial.  In the light of the points I have made above, I consider it appropriate to draw an inference.  I would therefore rest my present judgment to remit the matter upon the established principle which was explained in NABE at [63], that the Tribunal has failed “to deal with a claim raised by the evidence and the contentions before it”, and thereby has committed jurisdictional error. 

6. For the above reasons, I consider the applicant has made out grounds for the relief he seeks. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  24 June 2008