SZMUW & Anor v Minister for Immigration
[2009] FMCA 753
•10 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMUW & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 753 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Migration Act 1958 (Cth), s.91R |
| NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 SZJYA v Minister for Immigration & Citizenship (No.2) [2008] FCA 911 |
| First Applicant: | SZMUW |
| Second Applicant: | SZMUX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2559 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 13 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2009 |
REPRESENTATION
| The Applicants: | The applicants appeared in person with the assistance of a Malayalam interpreter. |
| Counsel for the Respondents: | Mr P. Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 3 October 2008 is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2559 of 2008
| SZMUW |
First Applicant
| SZMUX |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant and her husband are from Kerala, India. It is the first applicant’s (SZMUW) claims which were assessed for a Protection (Class XA) visa. The second applicant (SZMUX) applies for a Protection (Class XA) visa as a member of the first applicant’s family unit.
The first applicant claims that she belongs to a “scheduled caste” of Latin Catholics in Kerala. The applicants have two daughters. The first applicant faced discrimination because of her caste at college where she was isolated and traumatised to the point of not doing well in her examinations. She claims that partway through her college degree, her financial subsidy ceased because of her caste status.
The first applicant further claims that she applied to a Teachers’ Training College in 1992 but that applicants from the upper caste were chosen for admission over her. The applicant claims the Kerala police and members of the upper caste exerted violence on the scheduled castes in 1992 and 1995, including shooting, setting fire to houses and torture.
The first applicant claims that in 2001 the upper caste and police again killed scheduled caste members, including her family and friends. She claims she was also physically abused because of her caste membership. From 2002 to 2007 she continued to face caste-based discrimination in education, employment and in her application for a passport. She finally obtained a visa to Australia in December 2007.
The applicants arrived in Australia on 27 December 2007 and applied to the Department of Immigration & Citizenship (“Department”) for a Protection (Class XA) visa on 1 February 2008. A delegate of the Minister for Immigration & Citizenship (“Minister”) refused to grant the visas on 31 March 2008 and the applicants were notified of this on the same date. On 15 April 2008, the applicants applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision. On 2 September 2008, the Tribunal affirmed the delegate’s decision not to grant the applicants protection visas. It is the Tribunal decision of Suzanne Leal (reference number 0802294) which is the subject of these proceedings.
A Court Book (“CB”) was prepared and filed by the first respondent’s solicitors on 11 November 2008 and is marked Exhibit “A”. This document was read into evidence.
Tribunal decision
The Tribunal’s decision has been effectively summarised by Mr Reynolds in his written submissions and I rely upon that summary which states that the Tribunal accepted at paragraphs [56]-[60] of its written decision that the applicant:
a)was a member of two particular social groups being scheduled caste Latin Catholics in Kerala and Fisher Caste Member in Kerala;
b)left school in 1984, graduated from All Saints College with a degree in Economics and in 2002 travelled to Pondicherry in Tamil Nadu to complete a course in Health Inspection having been refused entry to a similar course in Kerala;
c)applied for many positions, but had been unsuccessful in obtaining work in Kerala;
d)suffered employment related discrimination as a member of the scheduled caste, Latin Catholics;
e)faced discrimination by upper caste people in college and her subsidy for education was stopped because of her caste; and
f)may have been subjected to ope fire by armed police while staying with relatives on coastal villages in 2001.
The Tribunal found that the applicant had not provided clear evidence to satisfy it that she personally was subject to physical abuse since the 2001 period. She had not provided any evidence that indicated that further armed attacks by the police force had occurred since that time or that there had been any attacks targeting her area of residence (paragraph [58] of the Tribunal’s decision). The Tribunal did not accept that the treatment which she claims she suffered amounted to persecution because it was not convinced that the discrimination and hardship described was serious harm of the kind required by s.91R(1) (paragraphs [61]-[64] of the Tribunal’s decision).
The Tribunal acknowledged that instances of violence may well have taken place in Kerala against Christians in 1958, 1975, 1995, 2001 and more recently with the destruction of a neighbouring village. However, it was not satisfied that the applicant was personally targeted in any of the attacks or that she personally feared persecution following the attacks (paragraph [65] of the Tribunal’s decision). The country information stated that Kerala was a safe environment for scheduled caste Latin Catholics and members of the Fisher caste such as the applicant. A relative remained in their house in the Trivandrum district in Kerala and the applicant indicated that they were “alright and safe there”. Accordingly the Tribunal was satisfied that the applicant would also be safe when she returned to Kerala (paragraph [66] of the Tribunal’s decision).
The Tribunal was not satisfied that employment related discrimination threatened her capacity to exist. While she may have been unable to find work commensurate with her qualifications, it did not accept that she would be unable to find any work at all because her own husband, who was a member of the same particular social group, had been able to obtain work (paragraph [67] of the Tribunal’s decision).
Consideration
Ground one
The RRT did not sufficiently deal with my claim of I am a member of a particular social group. I was not given opportunity to obtain more evidence from India in order to substantiate this claim after the hearing.
This ground of review is not further particularised and appears to be misconceived because the Tribunal accepted that the applicant was a member of the two particular social groups to which she claimed membership.
Paragraph 56 of the Tribunal’s Findings and Reasons states:
56…I accept that she is a member of the scheduled caste Latin Catholics in Kerala and is also a member of the Fisher caste of Kerala.
Then at paragraph [60] the Tribunal member states:
In light of the evidence before me, I am satisfied that the applicant was a member of two particular social groups, namely that the scheduled caste Latin Catholics in Kerala and that of Fisher Caste members in Kerala.
Then at paragraph [64] the Tribunal member states:
64. I accepted that the first named applicant has suffered the discrimination as a scheduled caste Latin Catholic and a member of the Fisher caste living in Kerala and that it may well have been because of this that she claims to have been unable to secure employment in Kerala. I am not convinced however, that the discrimination and hardship which she has described is serious harm of the kind required by s.91R(1) in order to constitute persecution as is required in order to meet the definition as contained in the refugee definition.
In the applicant’s oral submissions there is an allegation that the activities involving the social group were not analysed or particularised. However, there is a very detailed analysis of the independent information concerning the applicant’s religious and social groups at paragraphs [47] through to [51] of the Tribunal’s decision. It is clear from the “Findings and Reasons” that the Tribunal addressed the question it was obliged to address which was whether the applicant’s membership of that particular social group gave rise to a well founded fear of persecution. The applicant has not provided any particulars identifying a specific claim that was raised and was not considered by the Tribunal. The Tribunal is not obliged to investigate the applicant’s claim. It is for the applicant to put the case that she wishes to put to the Tribunal. In oral submissions, the applicant asserts that the country information did not deal with her problem. This appears to seek a merits review which is not permitted in this Court and further the independent evidence set out in the decision does appear to be relevant in the circumstances of the claim. I am satisfied that the first ground of review cannot be sustained and should be dismissed.
Ground two
The RRT made a legal mistake by stating in its decision that there is no sufficient evidence to consider me as a membership of a particular social group (mistake in formulationing of particular social group).
As set out in ground one above the Tribunal accepted that the applicant was a member of two distinct particular social groups and there does not appear to be any factual foundation for the complaint in this ground.
This ground is not particularised and there is no oral or written submissions to expand on the claim. In the absence of such particularisation, it is difficult to perceive how this claim could be further advanced when the Tribunal has accepted that the applicant was a member of a particular social group. The factual foundation for this complaint does not exist and cannot be sustained. In these circumstances this ground should be dismissed.
Ground three
The Tribunal did not address how I could return to India without continuing face risk of persecution based on my religion. It fell into error as in SZATV.
The authority quoted in this ground and relied on by the applicant, SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 concerns internal relocation. This appears to be a misreading or misunderstanding of the Tribunal decision as it was the decision of the delegate of the Minister that addressed the issue of the relocation. This is recorded in the section “Claims and Evidence” at paragraph [23] which states:
On 31 March 2008, the delegate decided to refuse a grant of a Protection (Class XA) visa to the applicants. The delegate accepted that the first named applicant had been subject to persecution as a Christian Dalit but that she and her husband would be able to re-locate to an area of India that is not subject to religious and caste based violence she fears.
The issue of relocation was not raised or addressed in the Tribunal’s decision. The claim that the Tribunal’s relocation finding was erroneous and misconceived as the Tribunal did not make a relocation finding but found that there was no well founded fear of persecution in the applicant’s home state of Kerala. Consequently ground three cannot be sustained and should be dismissed.
New grounds raised during hearing
At the hearing the applicant raised a number of new matters which are not contained in the original or amended application. I allowed these issues to be ventilated as the applicant is a self represented litigant, does not understand the procedures of the Court and is conducting her application in a foreign language. The first of these concerns the particular social group and the allegation that the activities involving that social group were not analysed or particularised. Contrary to this contention there is a very detailed analysis of the independent information concerning the applicant’s religion and social groups at paragraphs [47] through to [51] of the Tribunal’s decision. It is clear from the “Findings and Reasons” that the Tribunal member addressed the question it was obliged to address which was whether the applicant’s membership of that particular social group gave rise to a well founded fear of persecution.
The applicant has not provided any particulars identifying a specific claim. The obligation lies with the applicant to put to the Tribunal the case which she wishes to pursue and it is not the role of the Tribunal to undertake its own investigation. A further oral claim made by the applicant is that the country information did not deal with her problem. In the absence of any particularisation of this claim, what the applicant appears to be pursuing with this submission is in effect an impermissible merits review.
Another complaint raised by the applicant is that the Tribunal did not analyse the applicant’s claim and did not seek or request evidence to undertake that review. This claim is not supported by a review of the analysis contained in the “Findings and Reasons”. The Tribunal is under no obligation to locate its own evidence nor is it required to call for further evidence.
In the applicant’s oral submissions the Court was invited to listen to the hearing tapes. I note that at the first court date hearing held on 28 October 2008, I ordered that evidence of the Tribunal hearing should be presented as a transcript verified by affidavit and that the tape recording shall not be received without leave of the Court obtained prior to the hearing. There is no affidavit transcript or tape put before the Court. The request to review the hearing tapes is not supported by any particulars and can only be presumed that the request is for the Court to hear the tapes and form its own view as to whether there is any point in issue. In view of the time between the first court date and the final hearing there has been sufficient time for the preparation of a typed transcript and verification by affidavit of the Tribunal hearing. I do not believe it is appropriate for the Court and at this stage to pursue this course without any indication as to what issue is complained of.
Mr Reynolds appearing for the respondents indicated that there was an issue that ought to be properly be identified to the Court that is at paragraph [57] of the Tribunal decision. The member notes that:
…there had been attacks on Christians in Kerala in recent times.
However, at paragraphs [58] and [65] of the Tribunal decision this is rejected by the Tribunal.
58. I accept the applicant’s evidence that in 2001, armed police forces opened fire on coastal villages, including one where relatives of the applicant were living. I accepted that the applicant may have been caught up in violence during the time she was staying in her relative’s home in one of the targeted coastal villages of Kerala. The applicant has not, however, provided clear evidence to satisfy me that she personally was subject to physical abuse during this time. She has not provided any evidence that further armed attacks by police force have occurred since this time or that there has been any attacks targeting her area of residence.
65. While I accept that instances of violence may well have taken place in Kerala against Christians in 1958, 1975, 1995, 2001 and more recently with the destruction of churches in the neighbouring villages, on the evidence before me, I am not satisfied that the first named applicant was personally targeted in any of these attacks. I am similarly not satisfied that she personally feared persecution following these attacks.
Mr Reynolds advised the Court that in the decision summary of the hearing that occurred before the Tribunal there is no specific statement that it informed the applicant that it might reach a different conclusion from that of the delegate and that could potentially raise a SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 issue.
Mr Reynolds submits that there are two reasons why this argument is not of merit. It is for the applicant to prove that this issue was not raised with her at the Tribunal hearing. In the absence of a transcript, or an affidavit as to what occurred at the hearing the applicant cannot prove that the matter was not put to her: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241; SZJYA v Minister for Immigration & Citizenship (No 2) [2008] FCA 911.
There is an independent basis for the finding. At paragraph [66] of the Tribunal’s decision, the Tribunal considered whether or not were the applicant to return to Kerala in the future, whether it was a safe environment and it concluded that it will be a safe environment based on the country information for it. In addition it reached the conclusion that the applicant did not face a well founded fear of persecution in the future were she to return to her home state on the basis of a separate and independent reason.
In relation to the authority in NAOA (supra) at paragraph [21] the Full Court said that on the evidence before His Honour (Driver FM) it was not open for him to make a finding that this issue had not been canvassed because His Honour did not have the benefit of a transcript. Their Honours Beaumont, Merkel and Hely JJ at [21] stated:
The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice..
Mr Reynolds submits that NAOA (supra) is directly applicable and therefore ought to be followed by this Court. In relation to the decision of SZJYA (supra) at paragraph 31 onwards the decision of NAOA (supra) is raised and rejected. This is on the basis that the High Court decision of NAFF superseded it and it suggested that, “well, if the matter is not raised in the summary of the hearing and the Tribunal is putting matters to consider relevant in that summary one can infer that something was not put if it is not in that summary”.
There are two answers to this.
a)NAOA is a decision of the Full Court and is binding; and
b)as a matter of reasoning the reliance on NAFF (supra) is misconceived, because in that case the High Court proceeded on the basis of agreed facts as to what was and what was not said at the hearing. It was an agreed fact as to what was and was not put. There is no inference drawn from the absence of what from the summary of the Tribunal.
I accept the argument presented by Mr Reynolds and agree with his submission. Accordingly, these new grounds raised in oral submissions should be dismissed.
Conclusion
Neither the original grounds nor the issues raised during oral submissions identify any jurisdictional error. Consequently, the application filed on 3 October 2008 should be dismissed with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 10 August 2009
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