SZMVW v Minister for Immigration - [2009] FMCA 282

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMVW & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 282

MIGRATION – Review of RRT decision – where applicants citizens of India – husband and wife – where wife attracted attention of local political parties by teaching bible stories to non-Christian children – whether Tribunal failed to consider claims for persecution for political reasons – where essential reason for discrimination was religious.

Dranichnikov v Ministerfor Immigration [2003] 197 ALR 389

First Applicant:

SZMVW

Second Applicant:

SZMVX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2693 of 2008

Judgment of:

Raphael FM

Hearing date:

27 March 2009

Date of Last Submission:

27 March 2009

Delivered at:

Sydney

Delivered on:

27 March 2009

REPRESENTATION

For the Applicants:

In person

Solicitors for the First Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2693 of 2008

SZMVW

First Applicant

SZMVX

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants are citizens of India. They arrived in Australia on 27 February 2008 and applied to the Department of Immigration & Citizenship for protection (Class XA) visas on 7 April 2008. On 21 May 2008 a delegate of the Minister refused to grant protection visas and on 29 May 2008 the applicants applied for a review of that decision from the Refugee Review Tribunal. The applicants were represented in their PVA by a firm of solicitors and migration agents. The Tribunal held two hearings and received information from the applicants in writing. On 4 September 2008 the Tribunal determined to affirm the decision under review and handed that decision down on 23 September 2008.
The applicants are husband and wife. They both completed PVA application forms. At [CB 10] the wife indicated that she had her own claims to be a refugee. The husband did not tick either the “no” or the “yes” box to question 21 but he completed Form D which is a form for an application for a member of a family unit who does not have his own claims to be a refugee. These forms were both completed with the assistance of the firm of solicitors and migration agents and the statement which accompanied the forms is headed “Convention Based Claims of Mrs Applicant”. The decision of the delegate makes it clear that the principal applicant is the wife.
The wife’s claims to be a person to whom Australia owed protection obligations are set out at [CB 33-35] and are substantially repeated by the Tribunal at [CB 124-126]. In short the applicant says that she and her husband are Christians of what is known as the Latin Catholic sect living in the state of Kerala. The husband is a long time and active member of the CPI(M) and theirs was a love marriage which had repercussions for them regarding assistance from their families. The husband appears to be a skilled welder and the wife a teacher who worked in her church teaching young children. The wife claims that the problems that she suffered resulted from the fact that there were non-Christian children being taught by her and she was teaching them bible stories. This aroused the ire of both local members of the BJP and the CPI(M), who declined assistance to them.
The applicant's history unfolds over a lengthy period from about March 1996 when her husband went to the UAE for work. Between 1996 and 2008 the husband went back and forth to the UAE. The wife told of incidents in which a person she believed was associated with the BJP threatened her with physical violence if she continued to teach her bible stories to the young children and she speaks of a particular incident in which a mob of people around her home pulled knives and in a scuffle in which her husband became involved cut him deeply. She says that, rather than arresting and charging the BJP supporters who did this harm to her husband, the police charged or at least indicated that they intended to charge her husband and she says that this was because the police were associated with the BJP. She also says that later after the BJP lost power in the state of Kerala the CPI(M) members tried to influence the police to take a harsh approach to her husband's case because they too were concerned at her activities.
The Tribunal questioned the applicant at some length about her story at the first hearing. At the second hearing the husband attended and was questioned about his involvement in these matters as a corroborating witness of his wife's claims to have been persecuted. Although the stories given by both the husband and wife were essentially similar, the Tribunal was able to find what it describes as “contradictions, implausibility and inconsistencies” which led it to conclude that the applicants were not truthful or credible. At [CB 94] the Tribunal commences to set out those inconsistencies and contradictions in detail. While some people in the position of the Tribunal may have come to the conclusion that the differences in the stories were minor and could easily be explained away by difficulties in understanding questions or in translation this Tribunal came to the view that they were inconsistencies which would lead it to fail to arrive at that state of satisfaction required by the Act.
At [95] [CB 139] the Tribunal explains its conclusions:
“Overall the Tribunal is not satisfied that the applicants have suffered persecution at the hands of the BJP, CPI(M) or the police. The Tribunal is not satisfied that the incidents described by the applicants ever occurred. The Tribunal is not satisfied that the applicant wife was teaching bible stories to non-Christian children. The Tribunal is not satisfied that the applicant husband was taken to the police station or that there is any type of summons, warrant or file relating to the incidents described by the applicants. The applicants claimed that they will provide documents in support of their claims yet to date no documents have been provided. The Tribunal is prepared to accept that the applicant wife was teaching at the local Catholic church. The accounts from the applicants relating to the most significant event (September 2001) varied dramatically. The Tribunal is not satisfied that any persons are trying to contact the applicants' children in an effort to find the applicants. The Tribunal is not satisfied that the police were intending to arrest the applicant and would have done so had they not departed India.
[96] The Tribunal understands that applicants feel tense and nervous when giving evidence. The Tribunal accepts that the applicant wife in particular was not feeling very well during the resumed hearing. However, the Tribunal is not satisfied that this was the reason for the above mentioned discrepancies. The Tribunal finds this explanation unpersuasive and unconvincing. There is no credible evidence upon which the Tribunal could find that the applicants stand at risk of suffering serious harm in the reasonably foreseeable future if they return to India.”
On 22 January 2009 the applicants filed an amended application with this Court which included three amended grounds of application. They were said to be in addition to the grounds contained in the original application. In the original application the grounds are stated to be :
“1.Breach of natural justice and procedural fairness required by the Migration Act;
2. Jurisdictional error.”
In the amended grounds of application the grounds are said to be:
“1.The Tribunal failed to consider all the claims made by the applicants and accordingly failed to consider the Application.
2.The Tribunal appeared to regard the claims for protection as based on fear of persecution for religious reasons but although acknowledging the claims of the applicants that they were exposed to adverse political behaviour failed to consider the claims for protection on this basis.
3.The Tribunal failed to fully consider the claims made by the applicants outlined in the statement provided in support of the application (at green book p.33-35, in particular at par. 23).”
Para. 23 of the statement is in the following form:
“From June 2007 to November 2007 my husband was in Cochin with my children and me and he was approached by the CPI(M) to support them financially my husband he refused to give party funds as their earlier failure to support and protect me and my children. The CPI(M) party members influencing the State of Kerala police to take harsh approach on my husband's case and to arrest him. My husband has a school time friend in the Kerala police who advised him secretly this. He realised that the state of Kerala police would harm him for political reasons and he would be imputed as a person opponent to the CPI(M) party and the BJP party.”
On 10 March 2009 the applicant also filed some written submissions. She says that she claims persecution in India on the basis of her religion and political opinion, and there was no assessment in relation to her fear of persecution by the BJP and CPI(M). She said she clearly stated that the BJP and CPI(M) are restricting her religious freedom and she seeks protection until the CPI(M) power ceases in the state of Kerala. She says that this is a failure to deal with one of the main elements of her Convention claims and thus the Tribunal did not carry out its duty under the law.
The Tribunal is required to consider all claims of an applicant and if it fails to do so it has failed to complete the task allotted to it; Dranichnikov v Minister for Immigration [2003] 197 ALR 389. However, in this case I believe there are two answers to the claims made by the applicant. The first is that insofar as there is a reference to para.23 this is a claim of her husband and her husband has specifically indicated that he is not making a claim so to my mind the Tribunal would not have erred if it did not consider it. The second point goes to the root of the whole claim and even if there was some responsibility on the part of the Tribunal to consider the husband's claim set out in that paragraph, I am not satisfied that it has erred because the effect of its findings was to deny the factual matrix upon which that claim was based.
The essential point in the applicant's claim is that she was teaching non-Christian children bible stories. It was as a result of this activity that the alleged problems occurred. These problems included the alleged actions of the BJP activists which resulted, inter alia, in her husband being cut and her being frightened. These activities also resulted, she says, in her husband and her being refused assistance by the CPI(M) following which her husband decided that he no longer wished to contribute towards the finances of that party and thus came into conflict with them in the manner described at para.23. If, as the Tribunal found, it cannot be satisfied that the wife did teach bible stories to non-Christian children then there were no grounds on which the BJP would attack her or her husband and if there were no grounds upon which the BJP would attack her there was no reason for her to call in aid the CPI(M) and if the CPI(M) was not called in aid and refused to help her husband would have no reason not to support them financially. Thus, all the claims made by the applicant fall with the Tribunal's conclusion that she was not teaching bible stories to non-Christian children.
The applicant in both her amended grounds of application and in her written submissions suggested that the Tribunal did not consider her claims for persecution for political reasons. The political reasons that she claims are that the persecution was allegedly effected by members or supporters of the BJP and members or supporters of the CPI(M). As Mr Johnson points out in his helpful written submissions one has to look at the essential reason for the persecution or discrimination not who it was that was carrying it out. The essential reason for the discrimination was religious. It was because she was teaching bible stories to non-Christian children. It matters not who was offended by those actions. Their reason for being offended and their reason for allegedly persecuting her were religious ones and not political ones.
For these reasons I am unable to assist the applicant in finding that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case. I would note that the Tribunal in recording its findings and reasons did not take the course frequently seen of making strong remarks about the applicant's credibility. It contented itself with expressing its views by way of a lack of satisfaction. That is all the Tribunal need to do.
The application is dismissed. The applicant is to pay the respondent's costs which I assess in the sum of $3,500.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 6 April 2009