SZMIP v Minister for Immigration

[2008] FMCA 1665

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMIP & ORS v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1665

MIGRATION – Review of decision of RRT – where applicant claimed Tribunal did not take into account her relationship with her sister who had been accepted as a Refugee – where matter not raised with Tribunal.

Migration Act 1958 (Cth), ss.424A, 424AA

NABE v Minister for Immigration (No 2) [2004] 144 FCR 1
SGBB v Minister for Immigration [2003] 199 ALR 364
SCAL v Minister for Immigration [2003] FCA 548

First Applicant: SZMIP

Second Applicant: SZMIQ

Third Applicant: SZMIR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1410 of 2008

Judgment of: Raphael FM

Hearing date: 4 December 2008

Date of Last Submission: 4 December 2008

Delivered at: Sydney

Delivered on: 4 December 2008

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: Mr P Reynolds

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent's costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1410 of 2008

SZMIP

First Applicant

SZMIQ

Second Applicant

SZMIR

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first named applicant is a citizen of India.  She arrived with her two children, who are also applicants, in December 2007.  On 31 December 2007 they applied for protection (Class XA) visas.  On 17 January 2008 a delegate of the Minister refused to grant the protection visas and on 11 February 2008 the first named applicant sought review of that decision from the Refugee Review Tribunal. The first named applicant was represented by a solicitor/migration agent and she attended (without the representative) a hearing before the Tribunal.  On 6 May 2008 the Tribunal determined to affirm the decision under review and that decision was handed down on 27 May 2008.

2. The Convention ground upon which the first named applicant sought to convince the Tribunal she was a person to whom Australia owed protection obligations was that of religion.  The first named applicant claims to be a Christian who lived in the State of Kerala in southern India.  She is well educated.  She told the Tribunal that she had been deeply involved in Church activities and in particular the outreach of the Church towards what she described as Dalits and untouchables.  In conducting these activities she came to the attention of Hindu extremists who were resistant to the provision of assistance to these people on the grounds that it was associated with conversion.  The first named applicant claimed to have worked in conjunction with the All India Christian Council (AICC) and to have met and been instructed to work for senior members of that organisation in Tamil Nadu, Bombay and Delhi.  The first named applicant gave a history of a number of what she described as "abductions" by the police in 2003 and again in 2007.  On these occasions she was kept in a police station, sexually harassed and starved.  On the second occasion when she returned from prison she received threatening telephone calls from men associated with the RSS, a Hindu extremist movement.  She had to go into hiding in Tamil Nadu before she obtained a visa to come to Australia.

3. The first named applicant had travelled to the United Kingdom in 2004 where she joined her husband who was studying for a Mates Certificate.  She also went to the United Kingdom in 2005 and again in 2007.  She worked in that country but she claimed that she was also working for the AICC and had been threatened by RSS members in London in 2007.  That was the reason that she returned to Kerala in that year.  The first named applicant told the Tribunal that she had not reported this incident to the British police because the RSS members had told her that if she let the authorities know they would murder her parents.

4. On 16 January 2007 the Refugee Review Tribunal differently constituted had remitted to the delegate for reconsideration the application of this first named applicant's sister and her husband.  The direction was effectively to grant protection visas to these people.

5. The Tribunal questioned the first named applicant about her claims and its account of her evidence at the hearing is set out in considerable detail between [CB 148] and [CB 156].  The Tribunal expressed its concern about some of the evidence that the first named applicant was providing to it, in particular its concern that she had travelled to and from the United Kingdom on several occasions and yet had not sought asylum in that country.  The Tribunal also expressed its concern that the first named applicant claimed to have a very high profile with the AICC and yet no evidence of her existence or of her tribulations had appeared on the AICC website.  The Tribunal noted that the first named applicant had difficulty in describing in any detail the connections which she had through the AICC with senior church leaders in Tamil Nadu, Bombay and Delhi.  It had concerns as to why she had never been charged in Kerala although she had been detained for lengthy periods in the police station.

6. Finally, the Tribunal pointed out to the first named applicant that there were disturbing similarities between the story that she was telling it and the story that her own sister had told to the delegate and the Tribunal that had heard the sister's application.  The stories were so closely similar that it led to some confusion about the date of her alleged abduction:

   “I indicated to the applicant that it appeared that substantial parts of her statement accompanying her application had been copied from the statement accompanying her sister's application for refugee status.  I noted that it appeared to me that this was how the mistake about August had been made because the applicant's sister had claimed to have been abducted in August 2006.  This had become August 2007 in the applicant's statement but only later had it been realised that since she had not been in India in August 2007 this could not be correct.  The applicant said her sister had suggested she should use the same representative her sister had used.”  [CB 153]

7. The Tribunal also put to the first named applicant certain independent country information originating from a Professor Varghese of the Kerala Human Rights Commission.  The gravamen of this information was that the human rights situation in Kerala, particularly with regard to Christians and Christians who worked with non-Christians, was actually less serious than in many other Indian states.  The information indicated to the Tribunal that there was adequate state protection provided in Kerala in the event that attacks occurred.

   “I put to the applicant the information we had discussed made it difficult for me to accept that the government of Kerala would have been persecuting the applicant for her Christian activities or her activities on behalf of the Dalits or Untouchables.  The applicant said that at all these levels they created situations to wipe out the evidence of this nature.  I put to the applicant that this information also made it difficult for me to accept that there was a failure on the part of the Government in Kerala to meet the standards of protection required by the Australian Courts in relation to persons involved in the sort of activities in which she claimed to have been engaged.  The applicant said that if she returned to India they were likely to hire people to murder her.” [CB 155]

8. At [CB 153] the Tribunal had advised the first named applicant that it was going to give her some information which it considered would be the reason or part of the reason for affirming the decision under review and to my mind at [46] complied with the provisions of s.424AA Migration Act 1958 (the “Act”).  There is no indication in the document that the first named applicant asked for further time to deal with the matters raised by the Tribunal the most important of which I have set out in these reasons.  In its findings and reasons the Tribunal expressed the view that the matters of concern had not been sufficiently explained away by the first named applicant and led it to believe that she actually was not involved in the activities that she had claimed.

9. The Tribunal was aware that the first named applicant's sister had been granted a protection visa and at [CB 159] it sets out some reasons why it believed that the first named applicant's claims were different from those of her sister whilst at the same time indicating that had this Tribunal been the Tribunal considering the sister's case it may well not have come to the same decision as that Tribunal.  The first named applicant's Tribunal pointed out that the sister had not had the opportunity of claiming asylum in the United Kingdom.  It pointed out that the sister's claims were confined to activities in Kerala whereas the first named applicant claimed to have been involved with the coordinator and secretary of the AICC and in meeting Church dignitaries which it believed would have been reported on the AICC website. Again where the sister claimed to have been detained in Thiruvananthapuram with her husband, the first named applicant claimed to have been detained in Thiruvananthapuram but with two members of the AICC which made it more likely that her travails would be reported.  Finally, the Tribunal pointed out that the sister's Tribunal did not have the advantage of the independent country information from Professor Varghese that I have referred to.

10. In conclusion the Tribunal, whilst accepting that the first named applicant was a Christian, did not accept the claims of abduction and assault in 2003, the threatening calls or the threats in London in 2007 or the abduction in December 2007 to the Thiruvananthapuram Police Station and the detention and subsequent indignities thereafter.  The Tribunal did not believe that there was a real chance that the first named applicant would be prevented from carrying out religious activities including visiting and providing assistance to the poor and the marginalised or that she would be otherwise persecuted for reasons of her religion if she returned to Kerala now or in the reasonably foreseeable future.

11. The first named applicant filed an amended application with this court on 15 July 2008.  The grounds of the application are claimed to be:

    “1. Jurisdictional Error;

    2. Breach of procedure required by the Act.

    The particulars of those grounds are:

    “(1)    The Tribunal did not sufficiently deal with my Convention claims that:

    (a) my sister was found to be a Convention refugee in Australia therefore I would be found as a refugee in Australia (because both claims are relevant to each other);

    (b) my relationship with her (membership of a particular social group); and

    (c) my fear as a result of my sister's adverse experiences. 

    The Tribunal did not consider at all as to whether I would be at risk of persecution due to my relationship with my sister who had been accepted as a refugee in Australia.  Consequently the Tribunal failed to perform its statutory duty as the Tribunal's failure to consider the above claims.

    The Tribunal erred in law by failing to consider the relevant circumstances of my sister's case and to apply the relevant facts of my sister's case to my case.”

12. The first named applicant also filed some written submissions in which she claimed that her sister and herself comprised a family and her relationship with her sister brings her into membership of a particular social group.

13. The difficulty with the first named applicant's claim expressed above is that it appears to fall clearly within the dicta of the Full Bench of the Federal Court; Black CJ, French and Selway JJ in NABE v Minister for Immigration (No 2) [2004] 144 FCR 1 at [62]. This was a case in which the Full Court considered whether the Tribunal had made an error of fact by failing to consider a claim not expressly raised by the appellant. After considering the authorities in [60] of the decision, including SGBB v Minister for Immigration [2003] 199 ALR 364 at [17] and SCAL v Minister for Immigration [2003] FCA 548 their Honour's opined:

    “This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant.  It is not obliged to deal with claims which are not articulated and which do not clearly arise from materials before it.”

14. At [62] their Honours opposed a situation almost identical to the one presently before me:

    “Whatever the scope of the Tribunal's obligations it is not required to consider criteria for an application never made. The application for protection visas by a mother and her children on the basis that they were refugees was not required to be considered as though it were an application in their capacity as the family of a man who had been granted a temporary protection visa: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441. Gleeson CJ generalised from this, albeit in dissent, in S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473:

    Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process.

15. A careful reading of this Tribunal's decision reveals that at no time did the first named applicant say that her fear arose out of her connection with her sister.  This was never in issue.  What she told the Tribunal was that like her sister she was an active member of the AICC and had suffered persecution because of her activities with the Darlits and untouchables in her home state.  Her claims went further than her sister as I have already discussed and this formed part of the grounds for the Tribunal's failure to come to the requisite state of satisfaction.

16. Although her claim in relation to her sister was put as a claim to be a member of a particular social group, the first named applicant in her statement to me today appeared to be indicating that there was some general unfairness in the fact that her sister had been granted a visa and not her arising out of the same factual basis.  This is, of course, a completely different thing.  A Tribunal is not bound by the decision of another Tribunal and in this case it explained adequately why it did not take the same view as the Tribunal in the sister's application.  I cannot see that the Tribunal either erred in law or failed to consider the relevant circumstances of the sister's case and to apply them to the first named applicant's case.

17. The second ground of the application is an alleged failure to comply with the provisions of s.424A in relation to country information. It suffices to say the country information is specifically excluded from the provisions of s.424A(1) and (2) by the provisions of sub-s.424A(3)(a) and is further excluded in this particular case by the provisions of s.424A(2)(A). In these circumstances I am unable to provide the first named applicant with the relief which she seeks.

18. I dismiss the application.  I order the applicant to pay the first respondent’s costs which I assess in the sum of 4,000.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: