SZOAX v Minister for Immigration
[2010] FMCA 322
•20 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOAX v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 322 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no lack of procedural fairness proved – the weight to be accorded to evidence is a matter for the Tribunal – in judicial review proceedings the Court cannot review the Tribunal’s findings of fact or its conclusion on the merits of the application before it. |
| Migration Act 1958, ss.422B, 424AA, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 |
| Applicant: | SZOAX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2884 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 4 May 2010 |
| Date of Last Submission: | 4 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 20 May 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2884 of 2009
| SZOAX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India where, he claims, he was threatened and attacked by the alcohol mafia for his involvement in the anti-liquor movement and by Hindu and Muslim extremists for his activities as a Catholic.
The applicant claims to fear persecution in India because of his association with the anti-liquor movement and his religion.
After his arrival in Australia on 9 July 2008, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 10 November 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 15 of the Tribunal’s decision. Relevant factual allegations are summarised below.
Primary application
In his visa application dated 19 August 2008, the applicant made the following claims:
a)he is a Catholic and came from a typical fishing village in Kerala;
b)in 1994 he completed ten years of schooling in Trivandrum. From 1994 to 1996 he completed pre-degree studies in accounting and business at a private institution in Trivandrum. From 1996 to 1998 he trained as an electrician at a Government Industrial Training Institute in Trivandrum. From 2001 to 2003 he was employed as a bus conductor in Trivandrum and as an “electrical operator” with the Kerala Water Authority from 2003 until 2007;
c)he had also been a “social worker”, “State Secretary youth wing” and a “resource person” from 1996 to 2007;
d)in 1994 he became involved in the “All India Catholic University Federation” which he said was involved in “Non-Alcoholic Movements”;
e)he had also been involved in social movements such as the “Coastal Fishermen’s Latin Catholic Students Movements”, “Pastoral Ministry” and “People Welfare Association”;
f)while he had been attending the Government Industrial Training Institute he had joined the student wing of the Congress party in Kerala, the Kerala Student Union (“KSU”);
g)in 1997 he had been offered a candidature as General Secretary of the KSU. The Communists, with the aid of the Students Federation of India, had demanded the withdrawal of his nomination;
h)he had become a member of the “Alcohol Free Church and Society Campaign” and had raised his voice against the “alcohol mafias who controlled almost all sectors of our society”, wrote articles in magazines about this as well as a drama which had been performed in the streets of his village. This had caused the alcohol mafia leaders to start monitoring his activities and to threaten his life;
i)he had joined the Kerala Catholic Youth Movement (“KCYM”) and had been elected State Syndicate Member and later State Secretary;
j)he was the editor of periodicals such as Yavanam and Sarga Dhwani through which he had conveyed his ideas. The Indian Express had printed an article about him and about Sarga Dhwani. This had promoted his activities and increased the number of his enemies;
k)he had faced a lot of hardship and physical attacks and in 2007 he had been forced to stop publishing Sarga Dhwani;
l)in his capacity as a Sunday school teacher he had written a drama about a Christian missionary who was killed in Orissa in 1999 and also “opposed the extreme Muslim ideas of various Islamic movements of India”. It had been performed on the streets and he had received threatening messages from “Hindu-Muslim leaders”. “Various mafia leaders” had threatened his father, telling him that “your son’s countdown has begun”;
m)in 2006 he had been selected to attend a workshop in prayer practice and learning in France. He had been heavily influenced by Taizé prayer and on his return to India he had visited schools and colleges to convey this idea to the younger generation. This had sparked further hatred among the non-Christian movements which had given “a final verdict” to stop his activities related to Christ and Christian beliefs;
n)one day when he had been returning from Pozhiyoor Parish, after giving training in Taizé prayer, he had been attacked by a group of masked men who had stopped his motorbike and had started questioning him. He had managed to escape but his belongings including a photograph of Brother Roger (the founder of Taizé) and his Bible had been burned;
o)his pet dog had been poisoned and a message stating “Wherever you hide, Death will follow” had been pasted on the dog’s body;
p)his family had pleaded with him to leave Trivandrum to save his life from danger. He stayed in cities like Chennai, Mumbai and Bangalore “where again my life was under surveillance”;
q)he got married on 5 February 2008; and
r)if he were to return to India he might lose his life.
At an interview with the Minister’s delegate on 8 October 2008, the applicant made the following additional claims:
a)he had participated in demonstrations in front of the Parliamentary Secretariat and he had also spoken against alcohol and had participated in youth gatherings in order to reinforce opposition to alcohol. As he had counted people entering alcohol shops and had told them that they were wasting their money, he had become a “watched person”;
b)the first time he had been threatened was when he had been returning from a meeting. He had been stopped and they pushed him out of his vehicle and then they overturned the vehicle and hurt him. After some time he had been able to get home with the vehicle. The vehicle to which he had referred had been his motorbike. They had done the same thing on two or three occasions;
c)he had contacted the police about the attack on him. The police had given him some soothing words but they had not meant what they had said. They had been after money themselves and the mafia people controlled them;
d)his activities had not only been prayer-related or church-related but had concerned “social upliftment”. In connection with that he had on several occasions had small and big opposition from community members;
e)he had also been running a local newspaper called Sarga Dhwani and when he had written about the bad practices of society they had written him threatening letters;
f)Sarga Dhwani had only been privately circulated in a small area but it had been discussed in an article in the local edition of the Indian Express and his name and photograph had appeared with this article. The article had appeared in the City Express supplement in Trivandrum;
g)he had stopped publishing Sarga Dhwani in 2007 because he had been threatened;
h)he had received many threats in connection with his social welfare work and his prayer activities;
i)he had lived in Chennai, Mumbai and Bangalore but he had spent only a few days in each place. He had found religious violence in these areas as well so he had had to return to his village. The people who were against his activities had a network and they let people know when a person like him moved to any of these cities;
j)he had been in Adiyar in Chennai for 40 days in June 2007, in Mumbai for a month in August 2006 and in Bangalore for 15 days in November 2006;
k)he had not sought protection in France when he had been there between April and June 2006 because he had had the prayer training there and he had wanted to share the inspiration he had gathered with the people back home;
l)the occasion which he had described in his statement when he had been attacked by a group of masked men who had stopped his motorbike and had started questioning him had been in April 2007. There had been five to six people and they had appeared drunk. They had hit him two or three times after taking his vehicle and throwing it away from the road. He had escaped by running away from them. The next day his friend had gone there and had brought his motorbike back;
m)the incident in which his dog had been poisoned had also taken place in April 2007; and
n)after these incidents he had become more cautious and not as public. He had been moving between the houses of his friends in his local area.
Tribunal hearing
At the hearing before the Tribunal on 3 March 2009 the applicant made the following additional claims:
a)he had not been actively working for the Congress party after he had left the Industrial Training Institute but he had had “an identity” that he was with them;
b)he had started his involvement in the Alcohol Free Church and Society Campaign in 1994, but only in a small way. He had not been actively involved but he had been “attending some”. After 1998 he had been actively involved. He had conducted seminars (which he later clarified as organising people who knew about the after-effects of liquor to make presentations at gatherings), advised people not to drink and had also written about it (which had been published in magazines like the KCYM magazine). He had also been involved in stage plays;
c)the alcohol mafia had tried to attack him in 2002. He had been on his motorbike and four people had stopped him and had hit him a couple of times. He had escaped on his motorbike. They had said something to him like: “You have to move properly, don’t do all these things”. He had gone to the police station and had explained the whole thing and the police had told him that: “we will look after them”. He said, however, that the police were supporting the liquor mafia;
d)he had only been threatened by the alcohol mafia in 2002 on the one occasion and the alcohol mafia had not contacted him after 2002;
e)he had continued his activities in the anti-alcohol movement, attending all the seminars and discussions and “all these types of things”. He had taken part in the demonstration outside the Parliamentary Secretariat after the 2006 election;
f)after 2002 he had been more involved in the youth movement;
g)Sarga Dhwani had been a free monthly publication with a circulation of around 3,000, just in his local area. Some editions had been sent to Dubai. He had been the editor of Yavanam in 2007 only. Yavanam had been circulated only to Catholic youth;
h)the threats he had received from Hindu and Muslim extremists had been in connection with the prayer training he had received when he had visited France in 2006;
i)all the youths had been coming to his prayer meetings and “they” had thought that these youths would convert to Christianity. He had had threats “from so many places” after conducting these prayers;
j)he had travelled to Mumbai in August 2006 for a month after he received a threatening telephone call;
k)he had received a message to pass on Taizé prayer to Hindus and so he started promoting these prayers in the Hindu areas first;
l)on one occasion “they” had telephoned his father and had said: “Your son, you can count on days”;
m)after one prayer training session “they” had stopped him and had taken his Bible and books and had burned them. Once again he had been on his motorbike and they had stopped him. He said that there had been six people wearing masks;
n)he denied remaining in Kerala from July 2007 until July 2008, stating that he was hiding in different places and that nobody had known where he had been;
o)his marriage had been arranged in a short time in 2008 but he was unable to live in Kerala. He had spent four months with his wife but he had been staying in different places;
p)he had ceased his involvement with Sarga Dhwani in 2007. He had sent the reports he had made and somebody else had them printed;
q)even though he had been in hiding in 2007 he was State Secretary of the KCYM and had gone to meetings “and all”; and
r)the only problem which he had encountered as a result of his involvement with Sarga Dhwani and Yavanam was receiving anonymous telephone calls because of an article he had written about tuition centres.
The applicant produced a copy of the article which he had said had appeared in the City Express supplement in Trivandrum in relation to Sarga Dhwani and a copy of the magazine named Yavanam issued by the KCYM of which he said he had been the editor.
In a letter dated 17 March 2009 the applicant responded to the Tribunal’s s.424AA notification made at the hearing, saying:
a)he had been “tortured by that religious fundamentalist such as BJP, ABVP, RSS etc”; and
b)
the situation in Kerala was “very pathetic and immoral” and that as an active Christian he could not tolerate this
anti-religious behaviour so he had “faced much pain” from
non-Christian people.
With that s.424AA notification response, the applicant also produced the following documents, amongst others:
a)photographs of his involvement in church activities in Kerala (including one group photograph on which the applicant wrote “Hindu youth in my Taizé prayer group of Kerala”);
b)two press clippings relating to his election as State Secretary of the KCYM and the anti-liquor demonstration in front of the Parliamentary Secretariat respectively;
c)media reports and country information in relation to attacks on Catholics in Kerala; and
d)a letter stating that the applicant’s wife had been staying at a Convent since July 2008 “due to certain problems”.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal was of the view that the applicant had played a fairly minor role in the anti-liquor movement. It did not accept that the applicant’s activities were sufficiently significant to have attracted the attention of the “alcohol mafia leaders”. The Tribunal also did not accept that the applicant was physically assaulted by alcohol mafia members in 2002 or that they warned him not to continue his activities. Further, it did not accept that there existed a real chance that the applicant would be persecuted for reasons of his involvement in the anti-liquor movement if he returned to Kerala now or in the reasonably foreseeable future;
b)the Tribunal did not accept on the evidence before it that there existed a real chance that the applicant would be persecuted for reasons of any political views he might express in any articles which he might publish if he returned to his home in Kerala. The Tribunal referred to information before it which indicated that people in India enjoy freedom of speech and to the fact that the applicant was not a journalist by profession;
c)the Tribunal did not accept that the applicant believed that he had received a message to pass on Taizé prayer to Hindus or that he started promoting Taizé prayer in Hindu areas first because:
i)the applicant did not make this claim in his visa application; and
ii)there was nothing in the group photograph that he gave the Tribunal on 17 March 2009 to suggest that those depicted are part of a Taizé prayer group. The Tribunal considered this simply as an attempt to substantiate this new claim;
d)the Tribunal did not accept that the applicant’s prayer teaching activities resulted in him being threatened or attacked. It did not accept that he was, or was perceived to be, attempting to convert Hindus to Christianity through his prayer teaching activities. The Tribunal also did not accept that the applicant received threats, that his motorbike was stopped and his Bible and other belongings burned or that his dog was killed. Further, it did not accept that the applicant’s father received a telephone call threatening the applicant;
e)the Tribunal did accept that if the applicant returned to his home in Kerala the Catholic Church might wish him to continue to pass on what he had learned at Taizé. However, it did not accept that there was a real chance that the applicant would be threatened, attacked or otherwise persecuted for reasons of his involvement in prayer teaching activities if he returned to his home in Kerala;
f)the Tribunal did not accept, based on the evidence before it, that the applicant was threatened by Hindu or Muslim leaders or extremists as a result of any articles or dramas he may have written or anything he may have done as a Catholic. It also did not accept that he had been “tortured by that religious fundamentalist such as BJP, ABVP, RSS etc”. The Tribunal referred to independent evidence regarding the situation of Catholics in Kerala and to the advice of DFAT that Kerala is a law abiding state where legal recourse is available to those who feel threatened and persecuted, and stated that it did not accept that there was a real chance that the applicant would be persecuted for reasons of his religion as a Catholic or his involvement in Catholic social activism if he returned to Kerala; and
g)the Tribunal considered the totality of the applicant’s circumstances as someone whom it accepted is identified with the Congress party, had been involved in the anti-liquor movement although in a fairly minor way, had been the editor of two publications with a limited circulation, is a Catholic and a former General Secretary of the KCYM and who is involved in Catholic social activism and has undergone training in Taizé prayer and may be expected to conduct workshops in Taizé prayer for Catholic churches and colleges in the future. Taking into account the cumulative effect of all these circumstances, the Tribunal did not accept that there was a real chance that the applicant would be persecuted for reasons of his religion, his real or imputed political opinion or his membership of any particular social group for the purposes of the Convention if he returned to his home in Kerala.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The decision made by RRT jurisdictional error.
(2) Breach of natural justice.
(3) Breach of procedural fairness.
At the hearing the applicant also submitted that:
a)the Tribunal had preferred older country information over newer evidence which he gave orally at its hearing; and
b)it was not possible to obtain state protection because of police corruption.
He also traversed the merits of his application.
Given the way the application has been pleaded, it is appropriate to deal with the matters the applicant has raised in an order different to the one in which they appear in the application.
Lack of procedural fairness
Like all the grounds set out in the application, this allegation is not particularised. I take the applicant’s allegation that he was denied procedural fairness to be an allegation that the Tribunal did not observe its obligations under the natural justice hearing rule. The natural justice hearing rule is codified by s.422B of the Act in those provisions found in div.4 of pt.7 of the Act. Of those, the ones most obviously relevant to the applicant’s allegation are ss.424A and 425. Relevantly, s.424A provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department …
Section 424AA empowers the Tribunal to satisfy its s.424A obligations by making an oral notification at the hearing if it complies with the procedural requirements set out in s.424AA(b), namely:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
In this case, the Tribunal did put a number of matters to the applicant pursuant to s.424AA and on which it sought his comments. Arguably, this information was not required by the section to be notified to the applicant and presumably the Tribunal did so out of abundant caution. Whatever may be the case, the Tribunal discharged any s.424A obligations it had in relation to that information and it is also clear that the Tribunal’s decision was otherwise based on information which the applicant provided for the purposes of the Tribunal’s review together with independent country information which the Tribunal sourced itself. Section 424A(3) provides that such information is not required to be notified to an applicant for his or her comments. For these reasons, no breach of s.424A or s.424AA is apparent.
As to s.425, that section relevantly provides:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. …
The allegation is unparticularised and the applicant has not identified what issues, which might have been determinative of his review application, may have not been brought to his attention: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. To the contrary, the Tribunal’s decision record discloses that at several points during its hearing the Tribunal identified various matters of concern in order that the applicant might address them, thereby identifying them as potentially determinative issues.
Further, as the Tribunal was unable to reach a decision on the papers, it invited the applicant to a hearing, as s.425 required it to do. For these reasons, I do not find that the Tribunal failed to meet its obligations under s.425.
It is not apparent that the Tribunal breached any of its other obligations set out in the various sections contained within div.4 of pt.7. For these reasons, this asserted ground of review is not made out.
Breach of rules of natural justice
The natural justice hearing rule, in the statutorily codified form in which it applies to hearings before the Tribunal, has been considered above. The remaining aspect of the rules of natural justice is the bias rule. The applicant did not submit at the hearing that the Tribunal was biased and, consequently, it can be taken that this allegation is co-extensive with the allegation of denial of procedural fairness and raises no separate issues for consideration.
Tribunal preferred old country information
At the hearing the applicant submitted that the country information relied upon by the Tribunal dated from 2006 and should not have been preferred over the more contemporaneous accounts given by him in his evidence. However, the weight which the Tribunal accords to any particular evidence is part of its fact finding responsibility, a responsibility which is reposed solely in it. The Court’s role is limited to ensuring that the Tribunal properly applies the law in the conduct and the determination of its review. Other than in exceptional circumstances which do not apply here, it cannot review the Tribunal’s fact finding, including the weight which the Tribunal accords to aspects of the evidence before it. Consequently, this allegation does not disclose a basis upon which a finding of jurisdictional error can be made.
State protection not available
In his submissions at the hearing in these proceedings the applicant submitted that the police in Kerala were corrupt and so he could not get protection from them. That submission essentially repeats an allegation made at the Tribunal hearing when the applicant said that the police supported the liquor mafia, and indeed supported “all the mafias”. The applicant also said that police stations in Kerala were not safe for the public and that with money and power one could do anything in Kerala. However, the Tribunal considered the question of state protection in Kerala and found that it is a law abiding state where legal recourse is available to those who feel threatened or persecuted.
This allegation by the applicant is, in reality, no more than a challenge to the Tribunal’s factual conclusion that adequate state protection was available to him in Kerala. For the reasons given above at [24], this does not amount to a basis for a finding of jurisdictional error.
Other submissions at the hearing in these proceedings
In his oral submissions the applicant traversed many of the issues which he asserted demonstrated that he meets the criteria for the grant of a protection visa. These submissions were directed to the merits of his application, not to whether the Tribunal’s decision was affected by jurisdictional error. As stated above at [4], in judicial review proceedings such as these, the Court is not empowered to conduct a hearing into the merits of the visa application. Its role is limited to determining whether the Tribunal has properly applied the law and whether its decision is affected by jurisdictional error.
Jurisdictional error
The final allegation to be considered in these reasons, and the first one pleaded in the application, is that the Tribunal’s decision is affected by jurisdictional error. For the reasons already given, none of the other matters raised in the application or at the hearing in these proceedings indicate that the Tribunal’s decision is affected by jurisdictional error.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 20 May 2010
0