SZNDX v Minister for Immigration
[2009] FMCA 162
•2 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNDX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 162 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| SZBYR v Minister for Immigration [2007] (2007) 235 ALR 609 at [18] VAF v Minister for Immigration (2004) 206 ALR 471 |
| First Applicant: | SZNDX |
| Second Applicant: | SZNDY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 97 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 2 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 2 March 2009 |
REPRESENTATION
The First Applicant appeared in person
| Solicitors for the Respondents: | Ms K Whittemore Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 97 of 2009
| SZNDX |
First Applicant
SZNDY
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 23 December 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There were two applicants. The principal applicant being the applicant wife and her husband. References in this judgment to the applicant are references to the applicant wife. Background facts relating to the applicant's claims and the Tribunal decision on them are set out in the Minister's written submissions filed on 25 February 2009. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 13 of those written submissions:
In a statement attached to her protection visa application (“PVA”), the first applicant, a Latin Catholic, claimed to fear harm in India by reason of her religion and membership of the Other Backward Community (“OBC”) caste. The second applicant, the first applicant’s husband, applied for a protection visa on the basis of his membership of the first applicant’s family.
The first applicant ( “the applicant”) claimed that as a member of the OBC, she was socially disadvantaged and faced discrimination in her social life. She was educated from 1987 to 2004, when she received her Bachelors degree. Since 2002, she had taught bible classes to non-Christian lower caste children at a school attached to a prominent church in Trivandrum, Kerala to the ire of Rashtriya Sawyamsevak Sangh (“RSS”) and Bharatiya Janata Party (“BJP”) members. In October 2006, RSS and BJP party members and thugs warned her to stop her religious activities and so the applicant obtained her passport and began ‘attempting to leave Kerala’: Court Book (“CB”) 32 – 33.
In early 2008, some lower-caste Hindu children converted to Christianity as a result of her teaching. This angered RSS and BJP party members, who threatened to seriously harm her. The second applicant complained to police, however they were reluctant to offer protection and so the applicants fled India in June 2008, leaving behind their 18 month old child,. The applicant claimed that she cannot return to India whilst the ruling Communist Party of India (Marxist) party ("CPI(M)") is in power in Kerala as she suspects the CPI(M) is indirectly co-operating with the BJP and RSS in suppressing minority Christians in Kerala: CB 32 – 33.
The applicant attended an interview before a delegate of the Minister on 29 August 2008. In a decision dated September 2008, a delegate of the Minister refused to grant the applicants a protection visa: CB 42 – 51. The delegate did not accept that the applicant’s claimed persecution was of such a serious nature as to amount to persecution. The delegate found that if the applicant feared persecution as claimed, she would have left India with her husband when he went abroad to pursue employment opportunities. The delegate also noted that her claim that the CPI(M) was an anti-religious party was in stark contrast to independent country information which stated that it was officially secular and committed to ensuring freedom and rights. Finally the delegate found that even if the applicant faced harm from radical Hindus she could avail herself of effective state protection in Kerala and/or reasonably relocate to another part of India, particularly given her level of education. Accordingly, the delegate concluded the applicants were not entitled to protection visas: CB 50.
Proceedings before the Tribunal
On 16 October 2008, the applicants lodged an application with the Tribunal for review of the delegate’s decision: CB 52 – 55.
By a letter dated 3 November 2008, the Tribunal invited the applicants to attend a hearing on 3 December 2008, to give oral evidence and present arguments in support of their case: CB 58 – 59.
The Tribunal decision contains a record of matters discussed at the hearing: CB 90.2 – 93. The applicant claimed that she was threatened as a result of her religious activities between October 2006 and April 2008, that these occurred by phone or when the applicant left her home when those threatening ‘were in possession of weapons in her hands’: CB 90.7. When the Tribunal asked the applicant why she had not mentioned being threatened with weapons to the Department the applicant claimed ‘they usually had a knife or a sword in their bag as this is their usual habit’ and although she did not mention this to the Department ‘it was there’: CB 92.2. The Tribunal also put numerous pieces of country information to the applicant that was inconsistent with her claims (CB 91). The Tribunal also put to the applicant that she could relocate in Kerala, which the applicant denied: CB 92.1.
On 15 December 2008, the applicant wrote to the Tribunal enclosing a recent Amnesty International Report and submitted that Christians faced human rights abuses in all parts of India and so relocation within Kerala and within India was unreasonable: CB 92.4.
The Tribunal affirmed the delegate’s decision on 23 December 2008. The Tribunal accepted that the OBC caste was a particular social group of which the applicant was a member but rejected that she faced the claimed discrimination. The Tribunal noted that she was tertiary educated, which suggested she did not face discrimination in education and that she spoke English, which according to country information, suggested that she was socially advanced: CB 102.4 – 102.7.
The Tribunal also accepted that the applicant taught Bible studies, but rejected her claim to have been subject to verbal and physical threats from the RSS and BJP. The applicant’s failure to mention until the Tribunal hearing that she had been threatened with weapons led it to conclude she had ‘embellished her claims’: CB 102.7 – 102.8. The Tribunal also found her account of being verbally threatened was implausible on the basis of country information, which indicated her Church was one of the highest profile Churches in India, yet had no mention of its members being subject to attacks or harm. Further, the country information before the Tribunal indicated Kerala was one of the safer places in India to practice Christianity: CB 102.8 – 103.5. The Tribunal therefore concluded that the applicant did not suffer any Convention related harm in India: CB 103.7 – 103.8.
The Tribunal also went on to consider whether the applicants could access effective state protection should they face any Convention-related harm in the future: CB 105.1 – 106.3. The Tribunal concluded that protection would be available from the authorities and that there was no evidence to support the applicant’s claim that it would be denied to her or her family: CB 106.3.
Accordingly, the Tribunal was not satisfied the applicants were owed protection obligations, and affirmed the delegate’s decision: CB 106.5.
These proceedings began with a show cause application filed on 15 January 2009. That application is supported by a short affidavit which I received. The applicant told me that she relied upon her original application but it soon came to light that there was an amended application which had not been filed. The applicant indicated that she wished to rely on that amended application. I gave leave for that application to be filed in Court. I incorporate in this judgment the grounds in that amended application:
1. The RRT did not sufficiently deal with my claim [that] 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.
2. The RRT made a legal mistake by stating in its decision that that there is no sufficient evidence to consider me as a membership of a particular social group. (mistake in formulating of particular social group)
3. The Tribunal breached section 424A of the Migration Act as it did not put to me in writing after the hearing the adverse information arose during the hearing.
The RRT misunderstood my claims.
I received as evidence the court book filed on 2 February 2009. In both the original application and in the amended application the applicant asserted a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). However, the applicant labours under a misunderstanding concerning the operation of that section. She apparently considers that she was entitled to a statement setting out the reasons for the Tribunal's decision in advance of its decision. There was nothing in this case requiring disclosure under s.424A. I agree with and adopt for the purposes of this judgment paragraph 15 of the Minister's written submissions:
The first ground pleads that the Tribunal breached s.424A. No particulars are provided to identify such a breach. There was no ‘information’ that enlivened the Tribunal’s obligations under s.424A(1). The applicant’s written evidence to the Department, her oral evidence to the Tribunal and country information reports referred to by the Tribunal all fall within the exceptions in s.424A(3), namely in ss.424A(3)(ba), 424A(3)(b) and 424A(3)(a) respectively. Further, the applicant’s failure to mention to the Department that she had been threatened with weapons was not ‘information’ for the purposes of s.424A(1). Information for the purpose of s.424A does not include ‘the existence of doubts, inconsistencies or the absence of evidence’[1] and nor does it extend to ‘conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc…’[2] Accordingly, the applicant’s failure to mention weapons when describing the threats against her to the Department was not ‘information’ that enlivened the Tribunal’s obligations pursuant to s.424A. Accordingly, no breach of s.424A can be established.
[1] SZBYR v Minister for Immigration [2007] (2007) 235 ALR 609 at [18].
[2] SZBYR at [18] citing VAF v Minister for Immigration (2004) 206 ALR 471 at 477.
There was an unparticularised ground of jurisdictional error in the original show cause application. In the absence of particulars, that ground is meaningless.
Grounds 1 and 2 in the amended application relate to the applicant's assertion of membership of a particular social group. The applicant claimed to be disadvantaged by reason of that membership. The claim related both to the Mukkar caste of which she was imputed with membership and membership of the caste of Other Backward Community. Contrary to the assertion in the amended application, the applicant's claim was considered by the Tribunal in paragraphs 55-58 of its decision (CB 102):
The applicant lived in Vettucaud, Trivandrum in the state of Kerala. She claims that she is a Latin Catholic and that she belongs to the caste Other Backward Community (OBC). She claims she is imputed to be a member of the Mukkar caste. Hindu children converted to Christianity after she taught them the Bible in classes conducted at St Marys High School which is attached to the Madre De-Deus Church Vettucaud. She claims that she has suffered verbal and physical threats from the RSS and BJP after they found out about her teaching activity.
Christians constitute 2.3 percent of the population of India and were concentrated in the north east in addition to the southern states of Kerala, Tamil Nadu and Goa. In Trivandrum, Kerala, Latin Catholics comprise .13% of the population.
Independent information, cited above, indicates that the Indian constitution bars discrimination based on caste, and laws set aside generous quotas in education and government jobs for members of the so-called schedule tribes, scheduled castes (Dalits), and other backward castes (OBCs). Information from the Archdiocese of Trivandrum (cited above) indicates that as much as 90% percent of the laity in the Diocese of Trivandum are fisherfolk. This community as a whole is impoverished and is classified by the Government as OBC. I accept that the OBC is a particular social group. Whilst the applicant is not a fisherman, I accept that the applicant is a member of the OBC and imputed to a member of the Mukkar caste. She states in her PVA that she speaks and reads English. I do not accept that the applicant faced discrimination in education as claimed. The applicant is tertiary educated, she has a Bachelor of Science degree
The applicant also claims that she is socially disadvantaged. The Tribunal put to the applicant that the Archdiocese of Trivandrum internet site, suggests that English is familiar to the educated and to the socially advanced and as she claims in her PVA that she spoke English this suggested that she is socially advanced. The applicant responded that it may be true but she belongs to the lower caste, and a Latin Catholic does not get that consideration. I reject her explanation. I am satisfied that the applicant, a person who speaks English and is tertiary educated, is not socially disadvantaged in Trivandrum. It does not ring true.
The applicant also asserts that she was denied sufficient time to present information in support of the particular social group claim. The record of the Tribunal hearing and the Tribunal decision discloses at paragraph 35 (CB 91) that the applicant asked for an additional month to provide convincing evidence to the Tribunal. This did not seem to be specifically related to her particular social group claim. The applicant was apparently unable to tell the Tribunal exactly what information she intended to provide other than saying that she would get a letter from her parents that she was a teacher. At paragraph 40 of its reasons (CB 92), the Tribunal records that the applicant forwarded a letter received on 15 December 2008 enclosing a copy of her teacher's training certificate, a recent Amnesty International report and photographs.
The Tribunal took that information into account. I note that the Tribunal decision was made on 23 December 2008. Although the Tribunal did not accede to the applicant's request for one month to provide additional information, the applicant was not disadvantaged because she had sufficient time to provide the additional information she identified at the hearing plus other information. That additional information was taken into account. The Tribunal accepted that the applicant was a teacher (CB 102).
The applicant asserted in her oral submissions today that she just gave the Tribunal what she had because she did not know when the decision would be made and her request for additional time had not been acceded to. However, there is no evidence before me to indicate that the applicant would have been in any better position if she had been given the additional period that she requested.
The amended application also asserts that the Tribunal misunderstood the applicant's claims. There is no substance of that assertion. The Tribunal's decision record discloses a reasoned analysis of the claims as made by the applicant.
I conclude that the applicant has not advanced any arguable case for jurisdictional error by the Tribunal. Neither is such arguable case of error apparent to me from my own reading of the material. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
Costs should follow the event. The Minister seeks costs fixed in the amount of $3,100. Scale costs would be $2,500. The additional costs incurred in this matter relate to the preparation of submissions which was at the Minister's discretion and waiting time at Court on 3 February 2009 when this matter was in a longish list of matters for directions. In the circumstances, I am not minded to exceed scale costs. The applicant referred to an inability to pay costs but that is not a reason for the Court to refrain from making an order. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 March 2009
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