SZNPO v Minister for Immigration

[2009] FMCA 738

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNPO & ANOR v MINISTER FOR IMMIGRATION
& ANOR [2009] FMCA 738

MIGRATION – Visa – Protection (Class XA) visa – application for review of Refugee Review Tribunal decision – citizen of India claiming a well-founded fear of persecution for reason of political opinion – whether the Tribunal failed to regard the claim as material – whether Tribunal failed to ask itself the right question – no jurisdictional error.

Migration Act 1958 (Cth), ss.91R, 424A, 425, 474

First Applicant: SZNPO

Second Applicant: SZNPP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1193 of 2009

Judgment of: Scarlett FM

Hearing date: 15 July 2009

Date of Last Submission: 15 July 2009

Delivered at: Sydney

Delivered on: 15 July 2009

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application is dismissed.

2. The Applicants are to pay the First Respondent’s costs fixed in the sum of $3700.00 and I allow 4 months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1193 of 2009

SZNPO

First Applicant

SZNPP

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicants in this matter are citizens of India. They are a husband and wife and they come from Gujarat.  Only the first applicant, the husband, has attended Court this morning but he has informed the Court that he has authority to address the Court on behalf of his wife.  The applicants are seeking review of a decision of the Refugee Review Tribunal dated 22 April 2009. That decision affirmed a decision by a delegate of the Minister for Immigration & Citizenship not to grant the applicant's protection (Class XA) visas.

2. The applicants claim that the Tribunal fell into error in two ways.  First, that it mis-applied the meaning of the terms well founded fear and refugee and that the Tribunal erred when it adopted an unduly harsh approach to the test of well founded fear.  Second, the applicants claim that the Tribunal identified the wrong issue, asked itself the wrong question, failed to consider relevant matters and did not accept any oral and written evidence. 

3. The Minister for Immigration who was is the first respondent to this application has filed a response opposing the orders sought by the applicants.  The applicant had asked for a decision by the Court that the Tribunal decision should be set aside and a writ of mandamus should be directed to the Tribunal requiring it to re-hear and re-determine their application for review according to law. 

4. The background to this matter is that the applicants arrived in Australia on 11 August 2008.  They applied for protection (Class XA) visas on 25 September.  The first applicant, the husband, is the applicant who has made a refugee claim and he has applied on the basis that he fears persecution in India because of his political opinion.  He claimed to have been involved in a campaign against child labour in India. The second applicant is a part D applicant.  That is she makes a claim for a protection visa on the basis that she is a member of the applicant's family unit. She has made no separate refugee claim of her own.

5. A delegate of the Minister refused the application for protection visas on 5 January 2009.  The delegate invited the first applicant to attend an interview scheduled for originally 19 December and then for Christmas Eve, 24 December.  The delegate was unable to contact the first applicant and the interview was re-scheduled until 2 January.

6. The delegate noted the claim by the first applicant that his life had been threatened, that he fears that he would be killed on returning to India because of his activities opposing the exploitation of child labour in that country. The delegate found that that claim arose for the convention of political opinion. However, the delegate did not consider the first applicant's claims to be credible and whilst accepting that he had been engaged in a project concerning the exploitation of child labour and may have maintained a continued interest in this issue, the delegate did not accept the first applicant had experienced threats to his life or that his life would be in danger if he returned to India. The delegate found the applicant's account to be:

   Highly implausible[1].

   [1] See Court Book at page 55

7. The delegate also expressed concerns about the credibility of the applicant's claims concerning three different threats against his life by labour contractors and noted that the applicant had not reported any of these instances to the police and did not accept his explanation for his failure to do so.  The delegate went onto find:

   Even if I were to accept that the applicant's claims genuinely reflect his experiences and circumstances I consider it would be open to him to return to India and relocate to an area away from the individuals he claims wish to harm him[2].

   [2] See Court Book at page 56

8. The applicants brought an application to the Tribunal for review of the delegate's decision 29 January 2009. They were invited to attend a hearing by video conference originally scheduled for 24 March but

   
   

   re-scheduled to 8 April 2009. The first applicant attended a hearing and gave evidence. I note that the Tribunal wrote to the first applicant the following day and informed him that due technical problems the last

   
   

   35 minutes of the hearing were not recorded, however the Tribunal member wrote up a record of the hearing and forwarded that to the first applicant.  That written record can be found at pages 71-74 of the Court book.  Regrettably, an error appears in that whilst the Tribunal gave the first applicant a period of time to submit any further material two different dates are referred to.  Those dates were 10 April and 17 April 2009.  I am not of the belief that anything turns on that discrepancy, unfortunate those it is, as the applicants were able to forward copies of documents by fax to the Tribunal which appear to have been sent on 14 April.  It is clear from the Tribunal decision record that the Tribunal had regard to that evidence that was submitted.

9. The Tribunal made its decision on 22 April 2009 affirming the decision not to grant the applicants' protection (Class XA) visas. The Tribunal in its decision set out the claims made to the Department of Immigration & Citizenship, the oral evidence to the Tribunal given by the first applicant at the video conference and some evidence from other sources relating to legislation enacted by the government of India against child labour.  In its findings and reasons the Tribunal noted that only the first applicant made claims to be a refugee and that the second applicant, the wife, made no separate claims.  The Tribunal noted the first applicant's claims to have given advice about rights to families of children who were child labourers and to have been involved in a group which he established with the aim of combating the exploitation of child labourers.  However, whilst the Tribunal accepted that the first applicant may have been involved in some charitable activities with the Lions Club in India in respect of that purpose, the Tribunal was not satisfied with the basis of the applicant's claim.  The Tribunal said at para.64 of its decision:

   Of his claim to have been a member of a group active in combat in child labour the Tribunal is not satisfied that he was nor that he was an activist working in the area of child labour at all because his level of knowledge of this subject was so limited[3].

   [3] See Court Book at page 103

10. The Tribunal noted the claims by the first applicant to fear harm from two separate labour contractors involved in the exploitation of child labourers but found that claim to be implausible.  The Tribunal also found the applicant's claim to be implausible for the reason that the first applicant did not take any obvious or immediate steps to protect himself from the harm which would have included moving away from home, staying away from his workplace, reporting the treats to police or seeking advice about protection from other agencies.  The Tribunal was not satisfied the first applicant was targeted for harm in India by people involved in illegally employing child labourers.  The Tribunal noted the first applicant did not make any other convention related claim and found that he did not have a well founded fear of convention related persecution in India.  The Tribunal noted that the second applicant applied on the basis that her membership of the first named applicant's family and the fate of her application depended on the outcome of the first applicant's application.  As the first applicant did not satisfy the criterion set out in sub-s.36(2)(a) of the Act it followed that the second applicant could not satisfy the criterion set out in sub-s.36(2)(b).  Accordingly the Tribunal affirmed the decision not to grant either applicant protection (Class XA) visas.

11. In their amended application the applicants set out two grounds.  Ground one says:

    The Refugee Review Tribunal made a jurisdictional error when it misapplied the express and applied meaning of term well founded fear and refugee from the UN convention.

12. The applicants claim that the Tribunal erred in adopting an unduly harsh approach to the well founded fear. The applicants by way of particulars quote from sub-s.91R(1)(a) of the Migration Act relating to persecution for multiple motivations and claim that the Tribunal did not apply that test. The balance of the particulars related to a restatement of the applicants' refugee claims with a reference to the motivation by child labour contracted to harm the first applicant because he opposed the contractor's exploitation of children.

13. Ground two says that:

    The Tribunal identified wrong issue, asked itself wrong question, failed to consider relevant -

    presumably matters:

    And did not accept any oral and written evidence.

14. The particulars of that claim is that the first applicant said that he gave evidence about the real chance of danger from farmers and contractors of child labour but the Tribunal ignored that evidence and he claimed that the Tribunal did not accept any oral and written evidence with  regard to the fear of persecution.  The first applicant took exception to what were described as irrelevant questions to the Tribunal including what the applicant says was a statement by the Tribunal that the first applicant had come to Australia to earn money. The applicants claim the Tribunal made a jurisdictional error in making a mistake in understanding the case. They claim a denial of procedural fairness in the Tribunal member having already formed a view about the first applicant's status and claimed that the Tribunal did not explore the reasonability and practicability of relocation. The applicants have provided a written outline of submissions which were filed with the Court on 14 July, the day before the hearing. Those submissions essentially repeat and expand on the particulars in the amended application.

15. The first applicant attended Court and has made oral submissions in answer to questions from the Bench.  The applicant claimed that the Tribunal had not accepted documentary evidence that he had submitted and he complained that the Tribunal suggested that he could relocate to another part of India but claimed that this was unreasonable.  The first applicant claimed that the Tribunal was in error when it expressed the view that he was not aware of the relevant legislation in India regarding child labour particularly the age limit relating to child labour.  He gave an explanation to the Court that he did understand the age limit of 14 as provided by the legislation that he had the view that the age of 16 was an appropriate age because children under that age were neither mentally nor physically able to undertake work. The applicant said that he had made that clear to the Tribunal but I note that the Tribunal's account of the applicant's evidence in that regard at paras.46 and 47 on page 99 of the Court book differs significantly. The applicant in his submissions challenged the fact that the Tribunal had asked him about his - about whether he had any financial problems and he said that he had not and also claimed that he had a subjective fear of harm which only he could understand.

16. Ms Rayment who appeared for the Minister adopted the Minister's written submissions and submitted orally that in certain respects the applicant's claim to have been involved in a campaign against child labour had been accepted but that his basic claim had not.  Ms Rayment pointed out to the Court that the Tribunal had dealt with the question of why the applicant had not reported to the police three separate incidents of harm where he claimed that his life had been threatened or in danger but noted that the Tribunal had rejected those claims.

17. In dealing with the grounds of review I turn to the first ground which claims jurisdictional error by the Tribunal in mis-applying the meaning of the terms well founded fear and refugee. A claim of adopting an unduly harsh approach of well founded fear would appear to be a challenge to a finding by the Tribunal about the merits of the applicant's claim but I will take it to refer to a claim of a misinterpretation of the matters provided under s.91R of the Migration Act. The applicant's amended application refers in its particulars to s.91R(1)(a) of the Act saying:

    Persecution for multiple motivations will not satisfy the relevant test unless a convention reason or reasons constitute at least the essential and significant motivations for the persecution fear.

18. With respect, that quote does not appear to address the applicants' case at all. This was not a case of a claim of persecution for multiple motivations. This is a case where the first applicant has made one type of claim for a convention reason, that of political opinion. The quote in the amended application is indeed a quote from para.16 of the Tribunal's decision record at page 95 of the Court book. I note that in paras.13-19 of the decision record the Tribunal sets out its understanding of the requirements of ss.91R and 91S of the Act relating to fear of persecution, an element of motivation on the part of the alleged persecutors, the need for a fear to be for one of the reasons in the convention definition, the need for a fear of persecution to be well founded, the need for an applicant to be unable to unwilling because of the applicant's fear to avail himself or herself of the protection of their own country or countries of nationality and a reminder that a claim by the applicant must be assessed upon the facts as they exist when the decision is made. It requires a consideration of the matter in relation to the reasonably foreseeable future. It appears to me that that is a summary of the relevant law without error.

19. The point that will lead to a finding and does lead to a finding that the applicants' first ground has not been made out is the fact that the Tribunal did not believe the essential bases of the applicants' claim.  The Tribunal did not believe that the first applicant had been involved in a group active in combating child labour and based its finding on that issue on what the Tribunal considered to be the applicants' limited level of knowledge.  The Tribunal also considered the claims of threats of harm to the applicant but found those to be implausible because the first applicant did not take obvious steps to avoid that harm and in respect of three separate incidents had not reported the matter to the police for reasons which the Tribunal did not accept.

20. The question of credibility is a matter for the Tribunal.  Of course there must be evidence before the Tribunal upon which it came make a finding adverse to an applicant's credibility but in this case I am satisfied that there was material before the Tribunal upon which it was open to make such a finding.  In my view ground one fails.

21. The applicants' second ground contains a multiplicity of grounds including identifying the wrong issue, asking itself the wrong question, failing to consider relevant materials, not accepting oral and written evidence and made a mistake in understanding the case. The particulars in the applicants' submissions do not necessarily support all of those claims, even if such a claim if made out were to constitute jurisdictional error. There is no evidence that the Tribunal identified the wrong issue. The Tribunal was fully aware of the claims made by the first applicant, to fear persecution on the ground of political opinion due to his claimed involvement in a campaign against the exploitation of child labour.

22. There was no other issue. The Tribunal did not accept that claim. Similarly there is no evidence that the Tribunal asked itself the wrong question. The first applicant took exception to a suggestion by the Tribunal member during the hearing that the applicants' motivation was to come to Australia were in fact financial to earn money.  It should be noted that the Tribunal is not required to accept an applicant's claims at face value. The Tribunal does have the ability and indeed the obligation to test an applicant's factual claims because it is the Tribunal which is the arbiter of the factual matters.  In any event, the Tribunal did not find that the applicants had come into Australia for financial reasons. The Tribunal noted the specific denial by the first applicant at the hearing that that was the case.

23. The applicants in their amended application in fact quote from para.55 of the Tribunal decision record at page 100 in the Court book recording that denial.

    He denied however that he had come to Australia to earn money to help his family saying that there were no financial problems in the family, that they had enough income and that he still had his job in India although he had been told he would be suspended if he did not return soon.  He said that anyway he could earn money in India, his safety was the problem[4].

    [4] See Court Book at page 100

24. The Tribunal did not find that the applicants had come to Australia for financial reasons and that was not a reason given for refusing the application.  The applicants' claim that the Tribunal failed to consider relevant material. The argument in support of this claim was a repetition of the factual nature of the claim which the Tribunal had considered but rejected. There is no peace of evidence that the applicants pointed out to the Court that was put to the Tribunal that was ignored.  The Court questions the applicant about the claim that the Tribunal did not accept any oral and written evidence.  The reply to that essentially dealt with a recitation of why the first applicant could not relocate within India. The Tribunal decision record shows that both applicants were invited to attend the hearing and the first applicant did.  The first applicant gave evidence with the assistance of an interpreter in the Gujarati language and the Tribunal decision record sets out what appears to be quite a detailed summary of the evidence given. The first applicant was given the opportunity of providing documentary evidence after the hearing and did so.  All of that evidence appears in the Court book and there is nothing to show that the Tribunal ignored any of that evidence or did not accept it in the sense of not considering it. The Tribunal did consider the evidence.  It just did not give weight to the evidence upon which the applicants relied.

25. The question of the weight that the Tribunal gives to evidence is entirely a matter for the Tribunal. The Tribunal has to consider relevant evidence but it is not obliged to accept that evidence as persuasive of the applicants' case. The onus always remains with an applicant to provide evidence to the Tribunal which will lead the Tribunal to a positive state of satisfaction under s.65 of the Migration Act that the applicant is entitled to a visa.

1. The claims that the Tribunal did not give proper consideration to the question of relocation cannot be made out because the Tribunal did not accept in the first place that the first applicant had a well founded fear of persecution for a convention reason.  It was unnecessary to consider relocation in any other way than the Tribunal did. The first applicant told the Court that he was denied procedural fairness at the hearing but this claim went no further than a complaint about the Tribunal's rejection of the overall claim.  There is no evidence of a denial of procedural fairness.  There is no evidence of apprehended bias. There is no evidence that the way that the Tribunal rejected the three specific claims that the applicant had been threatened but did not go to the police for certain reasons what in any way in error.  The applicant was asked about that, he provided an explanation, the Tribunal did not accept it.  The second ground fails.

2. The applicants are not legally represented in these proceedings. It is appropriate to consider the question of procedural fairness as is appropriate under div.4 of p.7 of the Act in general terms. There is no breach of s.424A of the Migration Act. The Tribunal based its decision on material provided by the applicants and independent country information. That material is specifically excluded under sub-s.424A(3). As to s.425 of the Act the Tribunal invited the applicants to attend the hearing and the letter of invitation complies with s.425A. The applicants were given time to attend the hearing and indeed the hearing was postponed for reasons unconnected with the applicants. The first applicant attended the hearing conducted by video conference and gave evidence with the assistance of an interpreter. There is no complaint that the interpreting was in any way inadequate.

3. The Tribunal rejected the applicant's claims finding that they had not been made out and found certain claims were implausible. Those were the reasons that the Minister's delegate originally rejected the claims. The applicants therefore were on notice that those matters were all in issue. There is no breach of s.425 of the Migration Act. In my view no jurisdictional error has been shown and in the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Accordingly relief in the nature of certiorari and mandamus are not available. It follows that the application must be dismissed. I dismiss the application.

4. There is an application for costs on behalf of the first respondent Minister in the sum of $3700.  The applicants have not been successful in their claim and this is an appropriate matter to make an order for costs.  The amount sought which is $3700 is an appropriate figure.  It is below the scale provided by the Court rules.  The first applicant has told the Court that he is not in a position to pay that amount.  He is in employment but I accept the fact that $3700 may well be a significant financial burden and it could well be the case that the party would not be able to meet that amount within the next few weeks.  Whilst I consider it appropriate to make an order for costs in the sum of $3700 I will allow four months to pay.

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  10 August 2009