SZMYX v Minister for Immigration
[2009] FMCA 306
•15 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMYX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 306 |
| MIGRATION – Review of the decision of the Refugee Review Tribunal – harm feared found not to amount to “serious harm” – s.424A not enlivened – no evidence of bias – no apprehension of bias – no relocation issue arose on the facts found by the Tribunal – no failure to consider a claim – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 414A, 91R |
| SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 SZMJE v Minister for Immigration and Citizenship [2008] FCA 1751 SZLOJ v Minister for Immigration and Citizenship [2008] FCA 1693 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Sabaratnasingam v Minister for Immigration and Multicultural Affairs [2000] FCA 261 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 | ||
| Applicants: | SZMYX & ANOR | |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3088 of 2008 |
| Judgment of: | Nicholls FM |
| Hearing date: | 7 April 2009 |
| Date of Last Submission: | 7 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 15 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondents: | Mr Y Shariff |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 25 November 2008, and amended on 16 February 2009, is dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3088 of 2008
| SZMYX & ANOR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 25 November 2008, and amended on 16 February 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 15 October 2008 which affirmed the decision of the delegate of the first respondent to refuse protection visas to the applicants.
Background
The first respondent has put a bundle of relevant documents before the Court (the Court Book – “CB”) from which the following may be discerned.
1)The applicants are nationals of India from the State of Kerala. They arrived in Australia on 23 April 2008 (CB 14), and applied for protection visas on 22 May 2008 (CB 1 to CB 35, with annexures). The applicant wife (“the applicant”) made claims to protection. The applicant husband applied as a dependent member of her family (CB 27).
2)The application was refused on 21 June 2008 (CB 42 to CB 56).
3)The applicants applied for review by the Tribunal on 7 July 2008 (CB 57 to CB 60). The applicants were invited to attend a hearing before the Tribunal on 16 September 2008. Only the applicant attended and gave evidence (CB 133). (See also the Tribunal’s account of what occurred at the hearing reproduced in its decision record at CB 168.8 to CB 174.6.)
4)Following the hearing the applicant wrote to the Tribunal by letter dated 6 October 2008 in the following terms (at CB 147):
“I refer to my hearing held and kindly request you to take into account the current violation against Christian minority in India.
I cannot relocate outside of Kerala within India as the Christians minorities are undergoing human rights abused [sic] based on religion in the neighbouring State.
Please advise me if any information is found adverse to me after the hearing.
I enclose a copy of medical certificate as requested … .”
Claims to Protection
Before the Tribunal the applicant’s claims were:
1)On the basis of political opinion, in that she claimed that members and supporters of the Communist Party of India (Maoist) (“CPI (M)”) sought to harm her because she had changed her support from that party to the Congress Party.
2)On religious grounds in that she feared she faced persecution from Muslims because she was a Christian (Catholic).
3)She claimed to have experienced discrimination because she was of the “backward caste” or “Other Backward Community” (“OBC”).
The Tribunal
The Tribunal found that although the applicant had not “provided any documentation to corroborate her claim that she is a member of an OBC” (CB 175.3), it accepted that this was her background. It further accepted that: “when living in a rural area, the applicant may have suffered discrimination on the basis of her caste” (CB 175.6). However, in all, the Tribunal found that: “any such discrimination as she may have experienced was not sufficiently serious as to constitute persecution” (CB 175.7). It also found that: “she would not face discrimination sufficiently serious as to constitute ‘serious harm’ because she is a member of an OBC, if she were to return to India in the reasonably foreseeable future” (CB 175.7).
The Tribunal accepted that the applicant was of the Christian (Roman Catholic) religion. Ultimately, the Tribunal found that the risk of the applicant: “facing harm for reasons of religion in Kerala is so small as to be negligible” (CB 177.5).
The Tribunal found a number of contradictions and “contrasts” between the applicant’s statements and evidence given at the hearing in relation to her claims to fear harm from the CPI (M). The Tribunal was not satisfied that the applicant suffered any harassment or harm as she had claimed from the members of the CPI (M), the police, or from anyone else (see CB 178.7). Further, it did not accept that she was an activist of the Congress Party (as opposed to being a supporter), and therefore did not accept that she was adversely regarded by the CPI (M) (CB 180.2).
The Tribunal also found that the delay between the applicants obtaining passports and their departure from India was inconsistent with the claimed fear of persecution (CB 180.4).
In all, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the UN Refugees Convention. As the applicant husband did not make any separate claims to be a refugee, the Tribunal found that he did not satisfy the relevant criterion to be granted a protection visa, given its findings in relation to the applicant (CB 180.7). In all, therefore, the Tribunal affirmed the decision under review.
Application to the Court
The applicants filed an amended application on 16 February 2009 where some particulars were provided to the grounds stated in the original application. The grounds are as follows:
“1.The Tribunal breached s 424A at the Act by failing to invite applicant comment on or respond to adverse information
On 06 October 2008, I wrote to the tribunal that if any information is found adverse after the hearing please advise me.
The Tribunal should write to me for any adverse information before making a decision
2.The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec. 91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal
The Tribunal accept that when living a rural area, the applicant may have suffered discrimination on the basis of her caste, but the tribunal not considered my genuine claim and that I have been suffering many times because of my caste and religion
3.The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against the case in the final outcome, The Tribunal used all information for matter of reasoning and evaluation of my case for the protection visa, The Tribunal was pre occupied and did not have a fresh look. The Tribunal failed to consider the country information in proper way
In 2008, violence against Christians (including foreigners accused proselytizing) has increased. Mobs have attacked Indian and American missionaries and social workers as such activity provokes strong reactions in some areas. Anti-Christian violence has seen an increase recently In several areas of India, such as in Orissa, Gujarat, Kerala and Karnataka. Conversion of Hindus is illegal in some states of India and acts of conversion often become flash points for violent Hindu nationalist feelings.
the Court
At the hearing before the Court, the applicants appeared in person and were assisted by an interpreter in the Malayalam language. Mr Y Shariff of Counsel appeared for the first respondent.
Both the applicants made submissions that were directed to re-agitating before the Court their claims to protection. The applicants were unable to assist the Court in relation to matters set out in their amended application. It appears this document was drafted by a person who was described variously as someone known to a “friend”, or “someone met in the street”. The only additional matter raised by the applicants (the applicant husband) was that the Tribunal made a “legal mistake” in the way that it dealt with their request to be allowed to remain in Australia until the next election in Kerala, which hopefully would restore a party to power sympathetic to the applicants.
Ground One: Breach of s.424A of the Act
Ground one in the amended application asserts a breach of s.424A of the Act. With reference to particulars, the complaint appears to derive from the applicant’s letter to the Tribunal of 6 October 2008 (CB 147) (see also paragraph [2.4] above), in that the Tribunal is said to have failed to invite the applicant to comment on “adverse information”, as had been requested.
The ground as pleaded does not succeed. The Tribunal’s “disbelief” of the applicant’s evidence “arising from inconsistencies” is not “information” for the purposes of s.424A (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 (“SZBYR”) at [18], per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, and as was said in the case cited by the High Court per Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477 (noting further citations):
“… that the word ‘information’:
does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.”
The Tribunal, in my view, properly understood the nature of this request by the applicant when it stated in its decision record (CB 174.8):
“She also requested the Tribunal to advise her “if any information is found adverse to me after the hearing.” The Tribunal understood this request to mean that she wanted the Tribunal to advise her of its thought processes in assessing the information she had given at the hearing, in effect to give her a draft of its reasons for comment. The Tribunal does not consider that it is obliged to do so.”
To the extent that the Tribunal was referring to its obligations pursuant to s.424A of the Act it was correct of the Tribunal to consider that the applicant’s request did not engage the obligation set out in s.424A(1). The applicants’ ground as particularised does not succeed.
I should note, however, that while the Tribunal’s failure to acknowledge and respond to the applicant’s request does not reveal legal error on its part, that common courtesy, if nothing else, should have prompted it to advise the applicant that it could not, or would not, accede to her request. While I can appreciate that the provisions of s.414A of the Act may impose some pressure on the Tribunal in dealing with a busy workload, I cannot see that there is much additional work in acknowledging the applicant’s request and notifying her that it would not be acceded to. Clearly, while it is not a breach of its legal obligation leading to jurisdictional error, the Tribunal’s ignoring of the applicant’s request (and I do not mean by this that it needed to accede to the request), is not, in my view, an appropriate way of dealing with people who have made applications to it. Clearly, this applicant did not have any understanding of the Tribunal’s legal obligations in this regard, but this does not mean that her request should not have at least been dealt with the courtesy of some acknowledgement.
As to the remainder, the information relied on by the Tribunal for the purposes of s.424A(1) falls into the following exceptions:
1)As submitted by Mr Shariff, information contained in the applicants’ protection visa application falls within the exceptions contained in s.424A(3)(b)-(ba) of the Act (SZMJE v Minister for Immigration and Citizenship [2008] FCA 1751 at [22], SZLOJ v Minister for Immigration and Citizenship [2008] FCA 1693 at [15]).
2)The independent country information relied on by the Tribunal comes within the exception contained in s.424A(3)(a) of the Act (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at [71],VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12]-[14], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22]).
3)The information provided by the applicants themselves for the purposes of the review (for example, information provided at the hearing) falls within the exception contained in s.424A(3)(b).
In all, therefore, I cannot see any breach of the obligation set out in s.424A(1) of the Act.
In submissions before the Court, Mr Shariff (consistent with the Minister’s position as a model litigant in matters of this type) submitted that the complaint expressed in ground one, while misunderstanding the operation of s.424A, may have been meant to be directed to s.425 of the Act.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) the High Court set out the Tribunal’s obligations in relation to procedural fairness and a fair hearing. Section 425 provides that the applicant is invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review”, and that issues determinative of the review, not arising as a result of the delegate’s decision, oblige the Tribunal to give the applicant a sufficient opportunity to give evidence or make submissions in relation to those issues before it (see in particular SZBEL at [35] and [44]).
Despite opportunity, the applicants have not put before the Court any transcript of the Tribunal hearing such as to challenge the Tribunal’s account of what occurred at the hearing.
On what is before the Court, the issues determinative of this review were:
1)
a)That the applicant’s claims of discrimination and harassment on the basis of her caste were not of “sufficient seriousness” as to amount to serious harm for the purposes of the act (s.91R).
b)In particular, the Tribunal found that the applicant at the hearing failed to identify any specific instances of discrimination and although she made general statements to the effect that she had experienced discrimination in education and social life, she was unable to give examples.
c)This issue was specifically raised at the hearing (see CB 169.8):
“47.The Tribunal asked the applicant to outline the nature of the harm she claimed to have experienced because of her caste… .”
What follows (see in particular CB 169.9 ([48]) to CB 170.5 ([51])) reveals that the Tribunal gave the applicant the opportunity to outline the substratum of facts in support of this claim. Any plain reading of the Tribunal’s account of what occurred at the hearing reveals that the Tribunal sufficiently indicated that the applicant’s account was at issue (see in particular CB 169.10 and CB 170.3 to CB 170.5).
2)
a) The Tribunal found that the risk of the applicant facing harm for reasons of religion in her home state “is so small as to be negligible” (CB 177.5).
b) The issue of her claim to fear harm because of religion was also discussed at some length at the hearing (see in particular CB 169.3 ([43]), CB 169.8 ([47]), CB 171.8 ([61]), CB 172.9 ([68]) to CB 173.3 ([69])).
3)
a) The Tribunal did not accept that the applicant was adversely regarded by members of the CPI (M), the factual basis for the applicant’s claim to fear persecution on the ground of political opinion.
b) This issue was also canvassed at the hearing with the Tribunal (see in particular CB 171.3 ([56]) to CB 171.4 ([57]), CB 173.6 ([72]) to CB 174.2 ([75])).
4)The Tribunal also found that the “overall delay between the alleged persecution and her application” was not “consistent with a genuine fear of persecution as manifested by harassment the applicant described” (CB 180.4).
5)This issue was also raised and discussed at the hearing (see CB 172.7 to CB 172.9 where the Tribunal’s account shows that it sufficiently indicated its concern to the applicant in this regard (“the Tribunal said these did not seem to be the actions of a person who was in genuine fear of persecution in Kerala”)).
In all, to the extent that ground one therefore may be some mistaken reference to s.425, this complaint also does not succeed.
Ground Two: Misapplication of s.91R(2)(a) of the Act
In ground two the application asserts that the Tribunal misapplied s.91R(2)(a) of the Act with reference to the issue of relocation “in India”.
As stated above, the applicants were unable to assist the Court as to what exactly their complaint was in this regard. With reference to the particulars it appears that the complaint has two aspects:
1)A failure to test whether the applicants would suffer serious harm if they were asked to relocate in India.
2)The Tribunal did not consider the “genuine claim” to have suffered “many times because of my caste and my religion”.
First, the Tribunal made no finding as to relocation within India. While this issue was canvassed during the hearing (see in particular CB 169.6 ([45]): “might reasonably be able to relocate”), its various findings that the applicant’s claims of past harm (harassment and discrimination) in her home state were uncorroborated and, in any event, were not of sufficient seriousness to constitute serious harm for the purposes of Convention persecution under the Act, its findings that the risk of facing harm for reason of religion was “negligible” in her home state, and the Tribunal’s rejection that the applicant was adversely regarded by members of the CPI (M) in her home state (the basis of her claim to fear harm on political grounds), made it unnecessary for the Tribunal to further consider the issue of relocation. The effect of the Tribunal’s findings were that the applicant could safely return and live in her home state.
Second, in my view, the Tribunal properly understood the provisions of s.91R(2) and made findings, which were open to it, that a fear of localised persecution (that is, a fear of persecution in her home state) was not well-founded such that protection in other parts in India must be considered (Sabaratnasingam v Minister for Immigration and Multicultural Affairs [2000] FCA 261 per Whitlam, Lehane and Gyles JJ at [13]). Ultimately, the issue of relocation in this case was plainly immaterial.
The complaint that the Tribunal did not consider the “genuine claim” of suffering because of the applicant’s “caste and religion” plainly does not rise above a request for this Court to engage in merits review. Any plain reading of the Tribunal’s decision record reveals that the Tribunal plainly did consider the applicant’s claims in this regard. But for reasons which it gave, and which were open to it, found that it could not be satisfied that the applicant’s claims amounted to a well-founded fear of persecution for a Convention reason (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). This ground also does not succeed.
Ground Three: Country Information
Ground three is cast in a form of words often seen in applications of this type before this Court. To the extent that the complaint appears to be a complaint about the choice, use of, and weight attributed by the Tribunal to independent country information before it, then it is the case that the use of country information, and the weight given to that material, is as Mr Shariff submits, a matter for the Tribunal and does not give rise to jurisdictional error in the circumstances put forward by the application before the Court now (SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 at [16], per Hely J, NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11], VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [32]).
I should just also note the applicant’s reference to independent country information, and the reference to an internet website. In light of what is already stated above, this does not assist the applicants now as this Court is not in a position to separately consider the merits of the applicants’ claims to be refugees and to investigate such material found on the Internet.
To the extent that ground two makes reference to the Tribunal being “pre occupied and did not have a fresh look”, this may be a complaint of bias or apprehended bias on the part of the Tribunal. It is the case that such complaints must be: “distinctly made and clearly proven” (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22]). (See also Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 (“Jia”) at [69].) No particulars have been provided in support of this claim. In any event, on what is before the Court,` and with reference to relevant authorities (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, Jia, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [43]-[44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102), I cannot see that any such complaint can be made out. This ground also does not succeed.
Other Complaints
Before the Court, the applicant husband claimed that the Tribunal’s failure to consider the applicants’ request to remain in Australia until the next elections were held in Kerala was a “legal mistake” on the part of the Tribunal.
In the absence of any further particularity by the applicants, I understood this to be a reference to what was reported by the Tribunal to have been raised at the hearing (CB 174.3):
“76.The Tribunal asked if there were any other matters she wished to raise. She said she wanted to return to her village but needed protection until such time as the government of Kerala changed. She said she wanted to be allowed further time (3 weeks) to submit an amended statement of claims. The Tribunal asked why she had not submitted further claims prior to this. She said that, in the light of matters raised at the hearing she realised she needed to do this and needed more time. The Tribunal agreed to allow a period of three weeks for the applicant to submit a further statement.”
The applicant took up this opportunity by way of her letter of 6 October 2008, already referred to above (see CB 147 and paragraph [2.4] above).
Plainly, the Tribunal did take into account the applicant’s concern that she needed protection until such time as the government of Kerala changed, presumably in the expectation that there would be a change of government at that time.
The applicant’s claim in this regard was clearly put in context of the government of Kerala at the relevant time being dominated by the CPI (M) from whom she claimed to fear harm. The Tribunal’s finding that she was not adversely regarded by members of the CPI(M), and that, therefore, it was not satisfied that she had a well-founded fear of persecution in her home area for reasons of her political opinion, sufficiently dealt with and included the applicant’s claim to seek to remain in Australia until the next election. I cannot see that the applicant’s complaint in this regard constitutes an error on the part of the Tribunal.
Conclusion
In all, the applicants’ grounds as pleaded do not reveal jurisdictional error on the part of the Tribunal. For the applicants to succeed in their application the Court would need to discern such error. I cannot discern error on the basis of what the applicants have put before the Court, nor otherwise. This application is therefore dismissed.
Costs
It is also appropriate that an order for costs be made in this matter. At the conclusion of the hearing, Mr Shariff indicated that the Minister sought to press the issue of costs if successful, and sought an order in the amount of $4,000.
The applicants were given the opportunity to make submissions in this regard. In my view, the applicants’ claimed lack of funds, and lack of opportunity to obtain employment to generate such funds, is not a sufficient argument against the making of such an order.
Further, the amount sought by the Minister is in my view, with regard to the work done by the Minister’s legal representatives in responding to the applicants’ application, a reasonable amount (noting that pursuant to the relevant schedule to the rules of this Court the Minister could have sought an amount up to $5,000).
In all, therefore, I will make orders dismissing the application and that the applicants pay the first respondent’s costs set in the amount of $4,000.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 15 April 2009
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