SZNOE v Minister for Immigration
[2010] FMCA 838
•10 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNOE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 838 |
| MIGRATION – Judicial review sought on decision on basis to properly identify convention reason based on conjunctive of being a lower-caste Hindu and landowner – allegation Tribunal engaged in suspect reasoning – applicant seeking to reargue merits – s.424 invitation – letter of advice – does not import obligations under s.424B but is facultative only. |
| Migration Act 1958 |
| Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 650 BRGAE v Minister for Immigration and Citizenship [2009] FCA 543 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Minister for Immigration and CitizenshipvSZNAV [2009] FCAFC 109 MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 |
| First Applicant: | SZNOE |
| Second Applicant: | SZNOF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1069 of 2009 |
| Judgment of: | Burnett FM |
| Hearing date: | 19 August 2009 |
| Date of Last Submission: | 4 September 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 10 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Steele |
| Counsel for the Respondents: | Ms Wheatley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
Subject to any application by either party for any other order, the applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
SYG 1069 of 2009
| SZNOE |
First Applicant
| SZNOF |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 15 August 2008 the applicants, who claim to be citizens of India, arrived in Australia. They applied to the Department of Immigration and Citizenship for protection (Class XA) visas on 24 September 2008. The delegate refused their applications and gave notice of its decision and review rights by letter dated 20 December 2008. On 15 January 2009 the applicants applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision. The matter came on for hearing before the Tribunal on 24 March and 3 April 2009 and by its decision notice dated 9 April 2009 the Tribunal gave notice of its determination to refuse the application and affirm the delegate’s decision to refuse a grant of the protection (Class XA) visas. The applicants now seek judicial review of the Tribunal’s decision.
The primary applicant (the applicant) is a male Indian born in Pekowa. He lived and was educated in this district and more recently was employed as a farmer. On 1 January 2008 he married the secondary applicant (the wife). She does not claim separate refugee status but is included in the application as a member of the primary applicant’s family. Her application depends upon the outcome of the husband applicant’s application.
Background
The applicant’s family originated from Pakistan and belonged to a lower-caste. They migrated to India and in 1957 obtained a 50 year lease on farming land. The applicant claims that higher-caste Hindus commenced discriminating against new migrants such as his family. In particular he claims:
a)Higher-caste Hindus have attacked he and his family while they worked their land and sought to force them off the land;
b)Political movements of Indian National Lok Dal (INLD) and BJP began agitating to have migrant farmers expelled. Despite their approaches to police by the applicant and his father, their representations were corruptly rejected;
c)The marriage between the applicant and the wife was cross caste and opposed by his spouse’s family. The wife’s father abused both the applicant and his family.
The applicant’s refugee status was based upon a fear of harm in India because:
a)Local Hindus and the INLD and BJP wished to expel him and his family from their land; and
b)The wife’s family and others opposed his inter-caste/faith marriage. He claimed that he was arrested and tortured by local police and that his father was also attacked and injured to force him to give up land. Despite complaints to the authorities, no action was taken.
The delegate refused the application. So too did the Tribunal upon review of the delegate’s decision.
In his application for review of the Tribunal’s decision the applicant contends the Tribunal erred in four respects. In summary the applicant contended:
a)The Tribunal failed to provide the applicant with an opportunity to appear before it in contravention of the mandatory requirements of section 425(1);
b)Contrary to section 424A the Tribunal did not give the applicant independent country information about inter religious marriage;
c)The Tribunal failed to consider all elements of the Convention definition as it applied to the applicant;
d)The Tribunal failed to investigate the grounds of persecution advanced by the applicant.
Subject to the matters concerning the acknowledgment letter, which is addressed below, the only issue agitated at the hearing concerned the applicant’s third ground.
The applicant drew his initiating application. Although it appears to have had legal input, it appears plain from the circumstances of its preparation that the applicant had little insight into the points proposed to be advanced on his behalf. In the meantime, pro bono legal assistance was provided for presentation of his case at this hearing. In submissions prepared for that purpose none of the grounds addressed in paragraphs 1, 2 or 3 where they appear in the application were addressed. The respondents assumed for their part that this constituted an abandonment of those grounds. The applicants’ counsel confirmed this matter at the hearing.
Ground 3
Ground 3 of the application was not particularised. However, in submissions prepared on behalf of the applicant, the following particulars of that ground were advanced, namely:
a)That the male applicant had a well founded fear of persecution on the basis of the ownership of land by his family; and
b)That the male and female applicants had a well founded fear of persecution on the basis of their mixed marriage.
Failure to consider relevant social group
The principal contention of the applicant was that the evidence before the Tribunal demonstrated an integral basis for their well founded fear of persecution, that being because the applicant’s family were “… of lower-caste Hindu origins, owned the land and thereby endured the enmity of upper caste Hindus in the area.” It was contended that the question of the particular social group of lower-caste Hindus owning land was never properly considered by the Tribunal.
The applicants contended that the Tribunal identified three particular social groupings. However, it was submitted the Tribunal failed to specifically consider the question of whether the applicant had a well founded fear of persecution on the basis of the particular conjunction of being a lower-caste Hindu and land ownership. It was submitted this conjunction was integral to their submissions before the Tribunal and accordingly, the Tribunal’s failure to identify the particular social group and consider it in that context constituted a jurisdictional error.
In response, the respondent says:
a)The Tribunal did consider whether the applicant had a well founded fear of persecution on the basis of being a member of a particular social group being lower-caste Hindus and land owners; and
b)That notwithstanding any finding in (a), there was no jurisdictional error in any event.
Early in its decision the Tribunal correctly identified the issue for determination. In the first dot point on page 5 of its decision, it identified the alleged association between the applicant being of a lower-caste and his family’s land holding and how these factors appeared to precipitate discrimination. Later in the 7th dot point, the Tribunal also identified these particular characteristics as having generated intense sentiments in that context.
A continued appreciation of the conjunctive quality of these characteristics was, in my view, evident through the Tribunal’s decision in the Tribunal’s analysis of the earlier administrative assessment, noting these complaints featured in the departmental interview preceding the delegate’s decision. Again, in the course of the hearing before the Tribunal, the Tribunal noted the applicant’s claims of connection between his caste and land holding.[1]
[1] See decision paragraph 39.
In particular, at para 47 the Tribunal expressly raised with the applicant “his claims to fear harm from upper-caste Hindus and the police, arising from the farmland”.
In coming to its decision on the land issue, the Tribunal considered accumulatively:
a)Evidence of continued occupation of the land by the applicant’s father, despite alleged pressure from the upper-caste Hindus, was “compelling evidence” of no land dispute;
b)The applicant’s evidence concerning the tenure of the land gave the Tribunal concern about the applicant’s complaints; and
c)The then recent change in political leadership in the province to INC Congress which ought to have enabled the applicant to obtain some political assistance, but none appears to have been sought.
In considering these matters, the Tribunal clearly examined the conjunctive relationship between membership of a particular social group and land holding.
The applicant further contended that the social group was never properly considered. It noted the Tribunal had identified three social groupings, they being “lower-caste Hindus; lower-caste Hindus married to a sikh; or migrated residents (Hindus) who have migrated from Pakistan”.
However, the Tribunal also expressed concern about the breadth of the class constituted by the nomenclature “lower-caste Hindus”, being the group to which the applicant asserted membership. The Tribunal expressed concern that such a broad term (which I take it to mean class or grouping) “could encompass a wide range of social groupings” and questioned whether such a nomenclature is “a sufficiently precise characteristic or attribute that would distinguish such people from society at large in the Indian context”.
Against that background the Tribunal conceded that:
“For the purpose of this decision, however, it accepts that there is a particular social group of “lower-caste Hindus”. It is also satisfied that there are also particular social groups consisting of “lower-caste Hindus in inter-faith marriages” and “Hindus who have migrated from Pakistan”, as they have a characteristic or attribute that distinguishes them from the society at large. It considers the applicants’ claims on the basis of these possible particular social groups.”
In adopting its approach the Tribunal afforded the applicant the benefit of the doubt and allowed the widest possible consideration of “social grouping”. That is to say, the Tribunal accepted that each of the three groups identified could constitute a particular social group but that because of the applicants’ evidence and general self description as a “lower-caste Hindu”, the Tribunal was unable to make a specific finding as to which grouping the applicant belonged to. The Tribunal then proceeded to consider the issue of land in connection with or cumulatively with the other basis of the applicant’s claim as its remarks at paragraph 75 and 79 of its decision demonstrate.
Upon that basis, I am satisfied that the Tribunal did that which it was required to do, namely consider whether by reason of the applicant’s membership of a particular social grouping he had a well founded fear of persecution. That required the Tribunal to identify and consider the relevant social group. In my view, it did so albeit on a conceptual basis given its inability to make a specific finding concerning the applicant’s membership to either of the three particular groups nominated. Although criticism was made of the manner of expression by the Tribunal in its reasons, I consider that a fair reading of the whole of the relevant parts of the Tribunal’s decision and not “with an eye keenly attuned to error” would lead to this conclusion.[2]
[2] Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 650 at [46] – [47].
In any event, even if I were wrong on that point, I consider the Tribunal did not have to determine this matter once it found as a matter of fact that the applicant had not been harmed in any way or targeted in the past[3] and that there was no real chance of persecution now or in the reasonably foreseeable future.[4]
[3] See the Tribunal’s findings at [79], [85] and [88].
[4] Decision at [92] and at [95].
Having made those findings, the need for the Tribunal to identify the particular social group of which the applicant claimed to be a member was rendered otiose.[5] While it might be contended that the Tribunal did not consider the particular social group and adopt the two step approach as provided for in Dranichnikov[6], it is not to the point to say that the Tribunal should have followed these steps. As his Honour Justice Finkelstein stated in MZXDQ v Minister for Immigration and Multicultural Affairs[7]:
[5] BRGAE v Minister for Immigration and Citizenship [2009] FCA 543 at [26].
[6] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [26].
[7] [2006] FCA 1632 at [18].
“The Appellant contended before this Court that this was an impermissible line of reasoning. He argued that the steps outlined in Dranichnikov must be followed even if the Tribunal is of the view that the Applicant’s fear is unrelated to the membership of any such group. This is plainly incorrect. Courts will frequently skip over more difficult questions if the main issue can be determined from the answer to a simpler later question: in the law of negligence, there is no need to ask whether there is a duty of care if it is obvious that there has been no damage. In this case, moving to the last step in Dranichnikov was quite proper.
…
It is entirely proper to avoid identifying the appropriate “particular social group” if it is unnecessary to do so. Dranichnikov does not demand otherwise.”
More recently, in the context of consideration of “particular social group”, Besanko J in SZJRU v Minister for Immigration and Citizenship[8] stated:
“Notwithstanding these principles, it is not necessarily an error for the Tribunal not to begin with (or even to deal with) the question of whether there is a particular social group. The relevant part of the definition of refugee consists of a number of elements and, although they each form part of a compound conception …failure to comply with one is sufficient to defeat the claim. If the serious harm results from the application of a law of general application and there is no discrimination and therefore no persecution, the claim must fail ... .”
[8] [2009] FCA 315 at [50].
This approach has been applied with approval more recently in BRGAE v Minister for Immigration and Citizenship (supra).
It follows, in my view, that the Tribunal did not err even if it did fail to identify and properly consider the particular social group, as the Tribunal found that the applicants had not been harmed in any way or targeted in the past and there was no real chance of persecution now or in the reasonably foreseeable future. Once the Tribunal had made that finding, it was unnecessary for the Tribunal to identify a particular social group of which the applicants claimed to be members.
Accordingly, on this point, I accept that the Tribunal did apply correct legal principles and did ask itself the right questions and thus no jurisdictional error has been identified. This ground is refused.
Conclusion about Congress
The applicant contends that the Tribunal’s findings, particularly in relation to the land ownership issue, were founded in suspect reasoning. In particular, it was contended that it was evidenced by the Tribunal’s observation in its decision that part of the basis for it refusing the applicant’s application was “country information showing a Congress victory in Haryana effectively rules out INLD and BJP expelling the applicant from his land”.
The applicant contends there is nothing in the reasons for decision of the Tribunal to support the conclusion that even if Congress had been elected to the applicant’s local area they would have materially assisted the applicant or his family in land holding disputes with upper caste Hindus. It was submitted that what follows from this is that an integral part of the Tribunal’s reasoning in relation to the applicant’s credibility cannot be sustained.
At the outset, the respondent noted that there were a number of reasons why the Tribunal did not accept the applicant’s claimed version of events. However, specifically in respect of this claim, the respondent contended that the Tribunal found at [50]:
“The Tribunal asked whether he (the applicant) had asked for help from elsewhere such as the local Congress representative. The applicant replied that he did not know about politics, as his relatives took care of such things. The Tribunal alerted the applicant to its concern that, despite his schooling and his claimed direct stake in these issues, he left it to his father to resolve them and did not even have relevant information. The applicant repeated that his father knew about them.”
Following that particular claim, the Tribunal’s findings and reasons were provided at [78]. There, the Tribunal concluded:
“Third, as the applicant indicated at the hearing, the INC (Congress) won his seat during the 2005 Haryana state election. He claims that upper caste Hindus with links to other parties, namely the INLD, BJP and Vikas party, who themselves are well funded and armed, have targeted his family. Significantly, he also claims that these people influence the local authorities, who fail to protect the applicant and his family. The applicant’s evidence as to whether his family had sought the assistance of their Congress party representative was, in the Tribunal’s opinion, evasive. The Tribunal does not accept that the applicant, who has education and a claimed direct stake in the land, knows nothing about whether his father sought help from local politicians, if he needed it. The Tribunal considers that the applicant side-stepped this and similar questions because his claims about the land dispute are not truthful, and his efforts to give it a political flavour are also without any basis.”
Given the Tribunal’s findings, the respondent contended that the Tribunal did not find, as alleged, that “even if Congress had been elected to the applicant’s local area, that would have materially assisted the applicant or the applicant’s family in any land holding disputes with upper caste Hindus.”[9]
[9] Applicant’s outline at paragraph [20].
The Tribunal found that the applicant’s answers about whether assistance had been sought were evasive. It did not accept that the applicant did not know whether his father had sought assistance from local politicians if he needed it. The finding by the Tribunal to support its factual finding of a lack of creditability was not that assistance would not have been provided but rather that due to the evasive and sidestepping nature of the applicant’s responses, the Tribunal considered the claims about the land were not truthful. Respectfully, the applicant’s contentions on this point were misconceived.
The Tribunal’s findings as to credibility were matters of fact open for the Tribunal. The findings were reasonably open to it on the evidence before it. The applicant has not demonstrated any error in the Tribunal’s determination on this point and this ground must fail.
Acknowledgment of application letter
The applicant made further submissions in response to a matter raised by the respondents consistent with their obligations as model litigants. That matter concerned the invitation for information forwarded in the respondent’s acknowledgment of application letter.
The applicant contends that the Tribunal failed in complying with the procedural requirements of Division IV of Part 7 of the Act in its provision of invitations to him pursuant to s.424(2). It was contended that the question arising is whether the request by the Tribunal for the applicant to provide any information is a request for “additional” information. At the relevant time s.424 provided:
“(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3) The invitation must be given to the person:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the person is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.”
Section 424B provides:
“ (1) If a person is:
(a) invited in writing under section 424 to give additional information; or
(b) invited under section 424A to comment on or respond to information;
the invitation is to specify the way in which the additional information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give additional information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:
(a) a later time within that period; or
(b) a time within that period as extended by the Tribunal for a prescribed further period;
and then the response is to be made at an interview at the new time.”
Section 424 was amended by Schedule 1 to the Migration Legislation Amendment Act (No. 1) 2009 clause 10 which omitted the word “additional”. That legislation came into effect on 15 March 2009. All relevant authorities deal with section 424 as it stood at the time of the letter of acknowledgment under review in this application.
By letter dated 15 January 2009 the Tribunal forwarded to the applicant its standard form letter being an “Acknowledgment of Application Letter”. In particular it included the following request:
“Immediately send us any documents information or other evidence you want the Tribunal to consider…”.
The applicant particularly relied upon the Full Court’s decisions of SZKCQ v Minister for Immigration and Citizenship[10] and SZKTI v Minister for Immigration and Citizenship[11].
[10] [2008] FCAFC 119.
[11] [2008] FCAFC 83.
Given the judgments in those decisions there seems little doubt for the view that in certain circumstances the request for invitation to give additional information did import an obligation to comply with the code of procedures set out in section 424(2) and (3) of the Act. In SZKTI v Minister for Immigration and Citizenship the Full Court summarised the position at paragraph 43 as follows:
“In our opinion, in its natural and ordinary meaning, section 424(2) provides a means by which a person may be “invited” to give additional information to the Tribunal, that is, information which that person has not already provided to the Tribunal or which the Tribunal has not obtained in another way, such as pursuant to the use of its powers under section 427(3) to summons a person to give evidence.
…
We are of opinion that the parliament did not authorise the Tribunal to get additional information from a person pursuant to its general power under section 424(1) without complying with the code of procedures set out in section 424(2) and (3).”
The applicant contended that the general invitation offended that caveat upon requests for “additional” information.
Since those decisions the Full Court has specifically discussed the position in respect of letters of invitation. In Minister for Immigration and Citizenship v SZNAV[12] [2009] the Full Court held that a letter of acknowledgment does not have the same character as an invitation under section 424(2) of the Act. In reaching that conclusion the Full Court noted, inter alia, that the earlier decision of Minister for Immigration and Citizenship v SZKTI had been overruled by a decision of the High Court. The Full Court in SZNAV also noted that by implication the decision of the Full Court in SZKCQ v Minister for Immigration and Citizenship had also been overruled. As the court noted “the High Court’s decisions in SZKTI and SZLFX fundamentally shifts the ground about section 424 on which the respondent’s argument essentially depended”.[13]
[12] [2009] FCAFC 109
[13] At [12].
In examining the High Court’s consideration of the Tribunal’s review processes the court particularly noted the High Court’s observations at [27] – [28] where the High Court stated:
“[27]…In that context the Minister submitted that there were three powers by which the RRT could obtain information, with a descending order of consequences for any refusal to respond; first, by compulsory process (section 427(3)), a breach of which constitutes an offence; secondly, by formal invitation (section 424(2)), where a failure to respond to the invitation allows a party to proceed to make a decision on the review without giving a hearing (ss424C(1)) and 425(2)(c); and thirdly, by an informal process seeking voluntary answers, where no potential adverse consequences to the applicant for review are engaged. Section 424(1) was construed by the Minister as a general facultative power in aid of the inquisitorial functions of the RRT distinguishable from both the compulsory process under the Act and the formal statutory process which could result in the loss of a right to a hearing.
[28] By way of comparison, the Minister construed s424(2) as a special or particular method (other than by compulsory process) by which the RRT can obtain additional information. Failure by the applicant to respond to an invitation under s424(2) carries a consequence that the RRT may make a decision on the review without inviting the applicant for review to appear at a hearing (ss424C(1) and 425(2)(c). The applicant in those circumstances is not entitled to a hearing (s424(3)). That consequence distinguished this method of obtaining information from the general information power to get information under s424(1). The refusal to provide information under s424(1) carries no adverse consequences for the applicant in respect of the right to a hearing under s425…. For the reasons which follow, the submissions of the Minister should be accepted…”
At paragraph 21 the Full Court proceeded to observe that in light of the High Court’s determination it could not now be said that s.424 is the only source of the Tribunal’s power to obtain information. Furthermore the difference between s.424(1) and 424(2) is to be found in the consequences of noncompliance and not the making of distinctions between the Tribunal getting relevant information and inviting a person to give additional information. It noted s.424(1) is facultative. Failure to comply with such a request has no consequence adverse to the applicant for review. Section 424(2) is a formal request. It must be given in a particular manner (s.424(3)) and satisfy certain requirements (s.424B). Failure to comply with such formal limitation has adverse consequences. The Tribunal may make a decision on the review without inviting the applicant for review to appear at the hearing (ss.424C(1) and 425(2)(c)).
It follows then that the acknowledgment letter was, as the Full Court stated at [25], “nothing more than advice”. It was an administrative exercise preliminary to the review and its purpose was to provide the respondents with information about the review process and advise them of their rights. In the Full Court’s view it was analogous to a court registry writing to a party to a proceeding prior to a hearing.
In the circumstances the Tribunal’s failure to comply with the provisions of section 424B did not give rise to jurisdictional error.
Conclusion
The applicant advanced two grounds of reported error. The first concerned an alleged failure by the Tribunal to consider the relevant social group. In my view the Tribunal’s decision was open to it and the process adopted by it in achieving its conclusion did not occasion jurisdictional error. Secondly the Tribunal’s findings concerning the influence of the Congress party were open to it. Finally an additional point was raised concerning the acknowledgment letter. The letter conformed with the statutory procedure provided for in Part IV Division 7 and no jurisdictional error arises in respect of it.
Orders
The application is dismissed.
Subject to any application by either party for any other order, I order that the applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 10 November 2010
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