SZLPL v Minister for Immigration
[2008] FMCA 901
•16 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLPL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 901 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal did not fail to take relevant considerations into account – Tribunal not required to make inquiries – choice of evidence to rely on and weight to be given to evidence is a matter for Tribunal – test for adequacy of state protection. |
| Migration Act 1958, s.474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 S1925 of 2003 v Minister for Immigration & Citizenship [2008] FCA 246 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 |
| Applicant: | SZLPL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3430 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 16 June 2008 |
| Date of Last Submission: | 16 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr J.A.C Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3430 of 2007
| SZLPL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India where, she claims, she was a practising Christian. While she was in India she was actively involved in her local church and refused to sell her home to Muslim property developers. She alleged that this led to threats and physical harassment of her and her family. The applicant arrived in Australia on 11 May 2007.
The applicant claims to fear persecution in India because of her Christianity and possibly for political reasons.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 29 May 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 application for a protection visa are set out on pages 4 – 10 of the Tribunal’s decision being (Court Book (“CB”) pages 92 – 98). Relevantly, they are in summary:
Protection visa application
In a statement in support of her protection visa application, the applicant made the following claims:
a)she cannot live in India, and cannot return to India as she would be killed by enemies; and
b)her family circumstances are “very bad because of some critical problems”.
In a further statement submitted by the applicant, she referred to news articles provided with it and claimed:
a)she and her family are fisherfolk and belong to the lower caste according to Hindu fanatics and Muslims;
b)Hindu fanatics and Muslims have control over them due to their political power and influence in government circles;
c)her people are constantly arrested and harassed by the Hindu and Muslim authorities in order to wipe out the lower caste and Dalits from the area;
d)Christians like she are not welcomed by the majority Hindus and Muslims in Kerala and have no protection other than from priests and churches in India;
e)members of her family, especially she and her brothers, were involved in serving the poor and needy in their area;
f)whenever there was trouble in the area, the church intervened on their behalf and saved them from being taken away by the authorities;
g)they were threatened by Hindu fanatics and the RSS and were frequently assaulted by Hindu authorities for getting involved in service activities among the Hindus;
h)she and her brother were taken for questioning in around 2001 and were detained for regularly converting Hindus to Christianity. They were released by the priest;
i)her brother received death threats from Hindu fanatics and she sent him out of the country;
j)her Christian husband was attacked by Hindus for assisting injured fishermen of Muslim and Hindu faith. These injuries, which were inflicted while he was out deep sea fishing, resulted in frequent epileptic fits and loss of the ability to work;
k)members of the church assisted the applicant in filing a case against the authorities when they failed to investigate the attack on her husband;
l)Hindu authorities went to her home and threatened her with arrest for conversion of Hindus to Christianity if she filed a case against her husband’s attackers;
m)in September 2006 her family were approached by Muslims who demanded that they vacate their premises immediately. When they refused to do so they were attacked by Muslim criminals in their home, who threatened to kill them if they failed to vacate or complained to the authorities;
n)they could not stay in their home out of fear of death and took refuge in the church;
o)their priest discovered that a Muslim businessman was trying to acquire their home as it was located on land suitable to build a hotel on and that the businessman had advised they should accept payment and leave the area without making any further demands;
p)they stayed at the church for some time, then returned home but left again for a period after Muslims started roaming and squatting around their home during odd hours. When they returned for a second time, they found their house looted. When they complained to the Trivandrum police they were told that the Hindus and Muslims in the area were totally against their involvement with the church and in converting them to Christianity;
q)when the applicant refused again to sell her home to the Muslims, they dragged her by the hair from her home and took her to a remote beach area where they raped her. They told her that they could easily kill her and throw her in the sea but kept her alive because they needed her approval to transfer the property. They said that if she told the authorities about the attack family members would be killed and if she tried to escape to any part of India she would be tracked down and killed;
r)the priest made arrangements for her and her husband to stay at Mangalore;
s)they discovered that some Muslims were trying to locate them, as unknown men had enquired about them and their daughter at her university accommodation in Mangalore;
t)the applicant’s husband and son were assaulted by some unknown people on their way to the church. When the priest contacted the authorities, they advised the applicant to return to Kerala and sell her property to them; and
u)after the attack the applicant was unable to live in the midst of her relatives and friends in their area. The Muslims would not allow her to live in peace until she sold the property to them, which she wanted to keep for her children.
At the hearing before the Tribunal on 24 August 2007, the applicant made the following additional claims:
a)the religious activities in which she was involved were attending church, preparing food for the poor and distribution of clothes and medicine;
b)she is not lower caste and her problems with Muslims and Hindus relate to her Christianity;
c)nobody in her family has any connection with any political group;
d)she had been harmed as a result of her Christianity, noting that:
i)every time she wore a dress it was pulled and her body was scratched by Muslim men. She did not know why this had occurred;
ii)as she would not sell her house to property developers they became angry with her. They were Muslims and Hindus and beat her all over her body, pulled her hair and took her to the sea where she was dipped in water. This occurred in the first month of 2007;
iii)her earring studs were pulled off which created a wound and she was occasionally kicked by those people;
iv)towards the end of 2006 the development people dragged her to a different location where three people physically and sexually assaulted her under a mango tree;
v)the police had been bribed so, when the applicant went to report the assault, she was not allowed to enter the police station;
vi)because they have not seen the applicant, the same people were now targeting her daughter and had reached the place where she is;
vii)the RSS and CPM have maltreated some of her relatives; and
viii)in 2005 the potential buyers of her property, who were connected to the RSS and CPM, harmed the applicant by beating and stabbing her.
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 accepted:
i)that it was plausible that the applicant and other members of her family are practising Catholics and have been actively involved in religious activities, such as attending church, preparing food for the poor, and distributing clothes and medicine; and
ii)that those activities are altruistic in nature and consistent with Christianity and Christian values;
however, it was not satisfied that those activities would have given the applicant or any other members of her family, a profile that could mean that they would be targeted for religious reasons.
b)the Tribunal was satisfied that the applicant had not suffered any harm because of her caste;
c)the Tribunal was of the view that the lack of detail in and generality of the applicant’s responses to its questions about the physical ill treatment she alleged had occurred, raised serious doubts about her claims;
d)similar doubts were also raised by the lack of detail advanced by the applicant in respect of the rapes she alleged she had endured. Given the lack of details and generality of the applicant’s responses, the Tribunal was not satisfied that the developer ill-treated her as described;
e)the Tribunal was not satisfied that:
i)the developer ever physically or sexually assaulted the applicant;
ii)she reported any incident to the police;
iii)the developer bribed the police or the police did not entertain the complaint;
iv)the developer had been targeting her daughter; or
v)the developer was troubling her daughter, son or husband.
f)as to the harm that the applicant alleged her husband had suffered when deep sea fishing, the Tribunal was not satisfied that any such harm, even if it was accepted as having occurred, was essentially and significantly related to a Convention ground;
g)the Tribunal was not satisfied that the RSS or CPM maltreated any of her relatives; and
h)the Tribunal was not satisfied that the developer was interested in the applicant’s property for other than commercial reasons, as distinct from reasons of a religious or political nature. But in any event, the Tribunal did not accept that the applicant had suffered any harm as a result of the developer’s interest in purchasing her property.
Proceedings in this Court
In her amended application, the applicant set out seven numbered grounds of review.
Tribunal failed to take relevant considerations into account
The first two grounds are essentially one ground and allege that the Tribunal failed to carry out its review function by not taking into account relevant considerations central to the applicant’s claim. This allegation was particularised in the following terms:
(a)The Tribunal did not consider the applicant who has been under immense and intimidating pressure from RSS and BJP members because of her involvement with church and were accusing her of converting Hindus to Christianity; and
(b)In relation to above, the Tribunal did not consider the applicant's claim that RSS and BJP members will kill her if she returns to India.
As for the first particular concerning the RSS and the BJP, the Tribunal did indeed consider this issue. At p.5 of its decision (CB 93) the Tribunal set out the following elements of the applicant’s statement dated 31 May 2007:
8.They were threatened by Hindu fanatics and the RSS many times when they served the Hindus in their area. Hindu fanatics of the BJP and RSS lived in their area in order to control the expansion of Muslims and Christians. During those days, they were frequently assaulted by Hindu authorities for getting involved in service activities among the Hindus.
9.She and her brother were taken for questioning in around 2001. They were detained for regularly converting Hindus to Christianity. They were released by the priest.
Those matters were considered and rejected by the Tribunal, first at p.11 of its decision (CB 99) where the Tribunal said that it was:
… satisfied that those activities would not have given the applicant or other member(s) of her family a profile that could mean that they would be targeted for religious reasons.
and at p.13 of its decision (CB 101):
… the Tribunal does not accept that she or other members of her church were threatened or harassed by the RSS or Hindu fanatics, or that Hindu fanatics complained about the Church or accused them of converting Hindus to Christianity …
The Minister submitted that other considerations by the Tribunal were also relevant, in particular passages at pp.10 and 13 of the Tribunal’s decision (CB 98 and 101) where the RSS and the CPM are referred to. Although the issue of the activity of those two bodies was also considered by the Tribunal and also disposed of, I am not of the view that this issue falls within the particulars set out in the amended application. This is because it relates purely to political issues rather than to religious ones, religious considerations being the basis of the particular, and also because the issue refers to the applicant’s relations rather than to her.
As for the second particular, it is not apparent that the applicant actually said to the Tribunal, or to anybody else, that the BJP or the RSS would kill her. Certainly in her statement accompanying her protection visa application she said that she would be killed by “enemies” were she to return to India, however, that allegation is not linked to the BJP or the RSS. At p.5 of its decision (CB 93), para.10 of the applicant’s statement dated 31 May 2007 is quoted by the Tribunal as containing an allegation that the applicant’s brother received death threats from Hindu fanatics. However, that is a claim in respect of the applicant’s brother, not her. Consequently, it does not appear that there is any factual basis for the second particular to the first asserted ground of review.
Failure to investigate claim
The second ground in the amended application, which is numbered 3, alleges that the Tribunal failed to investigate the applicant’s claim. Although the Tribunal is empowered to make inquiries, it is under no obligation to undertake them. This was made clear by the High Court in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21 [43]. Similarly, in Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437:
The tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on. (per Gummow and Hayne JJ at 451 [58], Gleeson CJ agreeing at 438 [1])
Such matters were also considered and explained by Flick J in S1925 of 2003 v Minister for Immigration & Citizenship [2008] FCA 246 at [17] – [23].
In review applications such as the one the subject of these proceedings, the practical responsibility lies with the applicant to put information before the Tribunal which will satisfy it that he or she meets the criteria for the grant of a protection visa. If the applicant fails to do that, then she should not complain that the Tribunal did not do it for her.
Country information
The next ground of review, numbered 4, is pleaded in the following terms:
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 out come. The Tribunal used the all information for matter of reasoning and evaluation of my case for protection visa.
It appears that this allegation asserts that the Tribunal did not use specifically relevant country information like that supplied by her and preferred more general independent country information which it located itself. However, the Tribunal is entitled to have regard to whichever information it considers credible and to give such weight to the information which is before it as it determines. Fact finding is a matter for the Tribunal, not for the Court, and complaints that the Tribunal preferred some evidence over other evidence cannot ground a successful application for judicial review.
Failure to consider claim as a whole
The next ground, which is numbered 5, alleges that the Tribunal applied the wrong test in that it:
… 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 determine whether the claim so considered amounted to persecution.
Although the Tribunal did examine each element of the applicant’s claim carefully, and thus addressed the concern raised in the first two pleaded grounds in the application, it also looked at the claim as a whole. That can be seen in passages of the Tribunal’s decision under the heading “Findings and Reasons” such as in the fourth sentence of the sixth paragraph on p.11 of its decision (CB 99) where the Tribunal talks of considering “the evidence as a whole”, in the final full paragraph on p.12 of its decision (CB 100) where it talks of considering “the available information and in consideration of the evidence as a whole”, and elsewhere in the decision, most particularly the final paragraph on p.13 (CB 101) where the Tribunal said:
In consideration of the evidence as a whole, the Tribunal is not satisfied that there is a real chance that the applicant would be subjected to any ill-treatment amounting to persecution if she were to return to India, on the basis of any actual or imputed religious activities and faith, or any other Convention ground. As noted above, in consideration of the evidence as a whole, the Tribunal is satisfied that the developer’s interest in purchasing the applicant’s property is for commercial reasons, unrelated to any Convention ground, including but not limited to, membership of a particular social group.
All in all, it is clear that the Tribunal, although it did consider individual elements of the applicant’s claim, considered the entirety of her allegations when concluding that it was not satisfied that she was a person to whom Australia has protection obligations.
Corroboration required
Numbered 6, the fifth ground set out in the amended application suggests that the Tribunal required corroboration of the applicant’s claims before it would accept her claim and she supports this allegation by also saying that the Tribunal placed too high an onus of proof on the applicant and failed to give her the benefit of the doubt.
As to the allegation concerning corroboration, there is nothing in the Tribunal’s decision record to support it. The applicant’s claim was unsuccessful because it was unconvincing, not because it was uncorroborated.
As to the Tribunal putting an onus on the applicant, nothing in the Tribunal’s decision record suggests that an onus of proof, as that concept is understood in litigation, was imposed on the applicant.
As to whether the applicant was given the benefit of the doubt, it is true that the Tribunal ought to allow a reasonable margin of appreciation to be applied to any perceived flaws in an applicant’s testimony, and an applicant’s credibility should not be impugned simply because of vagueness or inconsistencies in his or her account of peripheral details: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 557. Nevertheless, the applicant’s credibility was not impugned simply because of minor details. For instance, the Tribunal did not rely on more significant matters such as inconsistencies between the applicant’s written claims and her oral evidence, or her claim’s similarity with another claim before the Tribunal.
The Tribunal concluded that the applicant’s claim of religious persecution was vague, general and lacking in important details. The Tribunal made similar comments in relation to her claim concerning the alleged actions of the property developer. It cannot be said that the Tribunal required too much of the applicant when considering whether she had met the criteria for a protection visa.
State protection
Numbered 7, the final ground set out in the amended application raises the question of state protection and alleges that the Tribunal was required to ask:
Whether the Indian authorities provided a standard of protection comparable with international standards.
However, the test which the applicant asserts in her amended application is not the test which the law requires be applied. As Brennan CJ said in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 233:
As the justification for the refugee’s not availing himself of the protection of that country is the existence of the relevant “circumstances”, those circumstances must have been such that the country of the refugee’s nationality was unable or unwilling to prevent their occurrence. 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.
The essence of his Honour’s reasoning was quoted with apparent approval by Gleeson CJ and Hayne and Heydon JJ in Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at 8 [20].
Consequently, the test which the applicant propounds is not the proper test which the Tribunal should have considered had it accepted the applicant’s claims to have a well founded fear of persecution for a Convention reason. However, the Tribunal found that she did not have such a fear, and thus there was no need for the Tribunal to consider the issue of state protection, whether according to the test propounded by the applicant or whether according to the true test required by law.
Conclusion
In this matter, jurisdictional error on the part of the Tribunal has not been made out. Consequently, the application will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 2 July 2008
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