SZOPO v Minister for Immigration

[2010] FMCA 895

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPO v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 895

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in India – applicant not believed – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.65, 427

Minister for Immigration v Guo (1997) 191 CLR 559
Minister for Immigration v SGLB (2004) 207 ALR 12
Minister for Immigration v SZIAI (2009) 259 ALR 429
Minister for Immigration v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
NAST v Minister for Immigration [2004] FCAFC 208
SJSB v Minister for Immigration [2004] FCAFC 225
VCAK of 2002 v Minister for Immigration [2004] FCA 459
W389/01A v Minister for Immigration (2002) FCR 407
WAGJ of 2002 v Minister for Immigration [2002] FCAFC 277
WALT v Minister for Immigration [2007] FCAFC 2

Applicant: SZOPO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1984 of 2010

Judgment of: Driver FM

Hearing date: 16 November 2010

Delivered at: Sydney

Delivered on: 16 November 2010

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms S Sirtes

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1984 of 2010

SZOPO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 13 August 2010.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from India and had made claims of religious and possibly particular social group and political persecution.  The following statement of background facts relating to the applicant's claims and the Tribunal decision on them is derived from the Minister's written submissions, filed on 4 November 2010. 

2. The applicant is a 32 year old (Court Book (“CB”) 13) Indian national who arrived in Australia on 11 October 2009 (CB 14).

3. On 23 November 2009 the applicant lodged an application for a Protection (Class XA) visa with the Minister’s Department (CB 1 to 36).  The applicant claimed to fear persecution in India on the basis of his membership of the Paravan caste and also by reason of his marriage to a Christian girl and his own conversion to Christianity.

4. After the Minister’s delegate refused the applicant’s protection visa application on 27 April 2010 (CB 50 to 64) he applied to the Tribunal on 18 May 2010 to review that decision (CB 65 to 68). 

5. On 31 May 2010 the applicant was invited to give evidence at a hearing of the Tribunal and was informed by that invitation that the Tribunal was unable to make a decision in the applicant’s favour based on the material provided to date (CB 71 to 72).  On 16 June 2010 the applicant sent a written statement to the Tribunal (CB 75 to 78).

6. On 30 June 2010 the applicant attended a hearing of the Tribunal at which he gave evidence with the assistance of a Malayalam interpreter (CB 79).  At hearing the applicant provided the Tribunal with his passport (CB 81 to 90), photos depicting the applicant’s wedding ceremony (CB 91 to 93), a caste certificate (CB 94), certificates of baptism (CB 95 to 98, medical reports relating to the applicant’s son (CB 99 to 106) and a marriage certificate (CB 107).

7. On 12 July 2010 the Tribunal invited the applicant to comment on information it considered would be the reason or part of the reason for affirming the Tribunal’s decision, by 4 August 2010 (CB 108 to 111).  On 2 August 2010 the applicant requested and extension of time in which to comment, although did not seek any specific period of extension (CB 112), such request was denied by the Tribunal on 3 August 2010 (CB 113).

8. By decision dated 13 August 2010 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa (CB 115 to 140).   

The Tribunal’s decision

1. The Tribunal:

   a)Accepted that the applicant is a national of India (CB 132 at [54]).

   b)Accepted on the basis of the documentation provided by the applicant that he is of the Paravan caste, converted to Christianity and married a Christian woman, however was not satisfied that the applicant had suffered serious harm for any of these reasons or that he had given a truthful account of his experiences in, and reasons for leaving, India (CB 133 at [56]).

   c)Did not accept the applicant was a truthful witness and considered he had been untruthful in relation to his personal and financial circumstances in India.  It also found his claims were inconsistent and lacking in credibility in integral aspects (CB 133 at [56]).

   d)Found the applicant had not been truthful in relation to his employment and finances.  In particular, the Tribunal accepted the applicant’s employment records and bank statements submitted in support of the Subclass 676 (Visitor) visa that he used to travel to Australia, which showed the applicant to be a manager and to earn approximately 597,514 Indian Rupees per year and to hold almost a year’s salary in savings in his bank account (CB 133 at [57]).  The Tribunal did not accept the claim at hearing that the applicant earnt only 3,000 Indian Rupees a month (36,000 Indian Rupees per year).

   e)Found that the applicant’s evidence in relation to his travel to Australia was adverse to his overall credibility.  The Tribunal had before it evidence that the applicant and another manager (Mr Ambika) from his workplace in India had arrived in Australia on the same date, having travelled on the same flight and had lived at the same address since their arrival in Australia.  This evidence was put to the applicant in writing for comment (CB 109 to 110).  In contrast the applicant told the Tribunal that he had met Mr Ambika at Lidcombe railway station after he had heard Mr Ambika speaking Malayalam.  The Tribunal considered that the applicant and Mr Ambika had planned their departure together and that the applicant had not been truthful about his account (CB 133 to 134 at [59]).

   f)Did not accept the applicant’s claim to fear harm from the RSS on return to India by reason of his conversion to Christianity and his marriage, as it did not accept that the applicant had suffered past harm from the RSS party or Hindi groups, and as the applicant had remained in India for a lengthy period after his marriage (CB 134 to 135 at [61] and [62]).

   g)Accepted that the Paravan caste is a scheduled caste in India and that scheduled castes may suffer forms of social ostracism and discrimination.  The Tribunal also accepted that the applicant’s family background may have been disadvantaged.  However, against this, the Tribunal noted that the applicant had completed high school, commenced college education and obtained professional employment as a manager by which he earnt a good salary by Indian standards (CB 137 at [68]).

   h)Was prepared to accept, over strong doubts (CB 138 at [69]), that the applicant had married a Christian woman and converted to Christianity.  The Tribunal noted that there was some evidence to indicate that persons who convert to Christianity in India may suffer social discrimination for marrying outside their caste or religion.  However, the Tribunal did not accept that the applicant had experienced such harm and was not satisfied that the applicant’s evidence showed this family disapproval was of such a level of seriousness that it would result in harm to the applicant or his wife or child.  In addition, the Tribunal considered the applicant having remained in India for three years after his marriage to be indicative of the fact that, even if there was some disapproval in relation to his marriage, it was not significant and did not affect the applicant’s ability to obtain stable and ongoing employment in India or to live safely (CB 138 at [70]).

   i)Was not satisfied there was a real chance that the applicant would suffer serious harm in the future for reasons of his religion, political opinion, imputed political opinion or any other Convention reason on return to India at the time of decision or the reasonably foreseeable future (CB 139 at [71] to [72]). 

2. These proceedings began with a show cause application filed on 9 September 2010.  The applicant continues to rely on that application.  There are four grounds in that application:

   1. The Tribunal failed to consider an integer of the applicant claims, in failing to consider whether or not a converted Christian in India was at risk of harm from radical Hindus, and not able to access effective protection whilst the Tribunal formed the view that there may be difficulties for persons converting from Christianity and there may be social discrimination for persons who [marry] outside their caste (page 25[70] [Tribunal] decision).

   2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

   3. The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual and legal error.

   4. The [Tribunal] has failed to investigate applicants claim, specially the grounds of persecution, in India.  Therefore, the Tribunal decision dated 13 August 2010 was effected by actual bias constituting judicial error.

3. I received as evidence the court book filed on 13 October 2010.  I also received paragraph 1 of the applicant's affidavit filed on 9 September 2010.  I treated paragraph 2 as a submission.  The applicant also filed written submissions on 4 November 2010.  The additional grounds emerging from the applicant’s affidavit and written submissions are assertions of actual bias and illogicality.

4. There is no evidence whatsoever to support the allegation of bias.  Such allegations are too frequently made and are generally unsupported.  As to illogicality, while reasonable minds can differ, the Tribunal's analysis of the applicant's claims, involved the acceptance of some claims and the rejection of others.  The claims which the Tribunal accepted, with some reluctance, were that the applicant was a convert to Christianity by reason of marriage.  But the Tribunal rejected the applicant’s claims of past serious harm at the hands of Hindu extremists.  The Tribunal’s reasoning was a rational and logical analysis of the applicant's claims.  The conclusions reached by the Tribunal were open to it on the material before it.

5. The applicant asserts that the Tribunal failed to consider an integer of his claims, namely, his conversion to Christianity with reference to his treatment by Hindus.  That assertion is answered by reference to the Tribunal's decision, as is pointed out in the Minister's submissions with which I agree.  It is plain that the applicant's claims were considered.  They were accepted in part, but the allegations of past serious harm were not.

6. At CB 132 [55] the Tribunal set out the applicants claims to:

   have commenced a relationship with a Christian woman and he converted to Christianity in order to marry her.  The applicant claims that due to his relationship and subsequent marriage with the Christian woman he was forced to leave his work in his home area…and he and his family was [sic] harassed by Hindu extremists who harmed them…The applicant claims that after his wife gave birth to a child, the Hindu activists…were infuriated.  The applicant claims that he fled to Australia with his wife, but his wife subsequently returned to India due to threats by the RSS and Hindu activists.  The applicant claims that the activists are waiting for him to return to India and the he will be harmed by them upon his return.

7. At CB 135 [60] the Tribunal accepted:

   that the RSS is a pro-Hindu extremist party.  However, the Tribunal does not accept that the RSS would continue to seek out the applicant some seven years after he had ceased to be involved in that party so that he would rejoin them in circumstances where he claims that he was viewed in an extremely adverse light due to his conversion and marriage to a Christian woman.

8. And then at CB 135 [62] the Tribunal considered:

   that if the Hindu activists were interested in the applicant they could have readily located him at his place of employment.  The Tribunal does not accept that the applicant could have continued to work for the same employer in a managerial position for several years of he was frequently sought by the RSS and other Hindu groups due to his marriage to a Christian woman.

9. Clearly the Tribunal considered the integer the subject of this ground.  Moreover, having found that the applicant had not faced past serious harm by reason of his conversion and the Hindu response (see CB 134-135 at [60] to [62] and 138-139 at [69] to [70]), the Tribunal was not required to determine the question of effective state protection. 

10. As the Full Federal Court found in WALT v Minister for Immigration [2007] FCAFC 2 at [41]:

    As the Tribunal decided that the appellant did not have a well-founded fear of harm for reasons of his religious beliefs or imputed religious beliefs, it was probably unnecessary to address the issues of the adequacy of state protection, and of relocation. The Tribunal’s conclusion on the existence or otherwise of that fear, and the reason for that conclusion, were firmly expressed, and without any indication that the Tribunal was in any doubt: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576.

11. Ground 2 is in template form and the Minister has attempted to clothe it with some meaning for the purposes of the Minister's submissions.  This also applies to ground 3.

12. The applicant was unable to expand upon those grounds other than to assert disagreement with the outcome before the Tribunal.  That suggests that the applicant's real complaint here is with the merits of the Tribunal decision, which are beyond the scope these proceedings.  To the extent that these grounds have some legal significance, the Minister's submissions deal adequately with them.

13. Ground 2 appears to allege that the Tribunal failed to properly apply s.65 of the Migration Act, presumably relying upon the decisions of Minister for Immigration v VSAF of 2003[2005] FCAFC 73 and Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 and SJSB v Minister for Immigration [2004] FCAFC 225 at [15]–[16], which found that s.65 of the Migration Act requires a visa application to be rejected in the absence of a positive finding of satisfaction. In other words the Act does not require the visa to be granted in the absence of an adverse finding. As the Full Federal Court stated in NAST v Minister for Immigration [2004] FCAFC 208 at [4]–[5]:

    As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister’s delegate to refuse to grant to the first appellant a protection visa.

14. The Tribunal in the present case stated it was:

    not, therefore, satisfied that there is a real chance the applicant will suffer serious harm in the future for reasons of his religion, political opinion, imputed political opinion or any other Convention reasons.  Accordingly the Tribunal is not satisfied that the applicant has a well founded fear of persecution should he return to India now or in the reasonably foreseeable future. (CB 139 at [72])

15. As it was not satisfied that the applicant faced a real chance of persecution for a Convention reason, the Tribunal was bound to affirm the decision of the Minister’s delegate to refuse to grant the applicant a protection visa.

16. The final ground is an allegation that the Tribunal failed to investigate the applicant's claims.  In order to succeed on that ground, the applicant must first establish that there was a duty to investigate in the circumstances of his case.  While in some circumstances there may be an obligation on the Tribunal to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, the applicant has not explained to me how such a duty arose in the circumstances of this case.

17. As a general principle, the Tribunal is under no positive duty to investigate claims.  In that regard, I agree with the Minister's submissions: Minister for Immigration v SGLB (2004) 207 ALR 12 at [43] and Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 at [20]. As their Honours Gummow and Hayne JJ made clear in SGLB (supra) whilst the Tribunal has the power to obtain further information, it does not have a duty to investigate an applicant's claims, nor is it under a duty to consider using such permissive statutory powers which might enable it to do so (for example section 427(1)(d)): see VCAK of 2002 v Minister for Immigration [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration [2002] FCAFC 277 at [21] and [24] to [25]; W389/01A v Minister for Immigration (2002) FCR 407 at [74] to [78].

18. As the High Court has most recently found in Minister for Immigration v SZIAI (2009) 259 ALR 429 at 436 at [25]:

    The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.

19. There is no suggestion in the present case, arising from the applicant or on the face of the decision that there was some obvious inquiry that that the Tribunal failed to make about a critical fact, the existence of which was readily available or ascertainable such that there is a ground of unreasonableness or error arising.

20. The applicant had provided some documentary evidence to the Tribunal, which the Tribunal was willing to accept.  The applicant made further claims, which the Tribunal was dissatisfied with.  It does not appear to me that there was any particular factual inquiry that needed to be pursued by the Tribunal in order to reach the conclusions it did.  I reject this ground. 

21. The applicant has failed to establish any jurisdictional error by the Tribunal.  Neither is any jurisdictional error apparent to me from my own reading of the material.

22. The applicant brought to court a bundle of documents which he was keen to show me.  I gather that one of those is a document which apparently evidences injuries suffered by the applicant's wife in July this year.  This was not material which the applicant submitted to the Tribunal and so the Tribunal was unable to take it into account.  I informed the applicant that he could, if he wished, submit further material for the Department with a view to the Department considering whether the Minister might be invited to intervene.  That is not a matter over which the Court has any jurisdiction. 

23. I find that the decision of the Tribunal is a privative clause decision.  Consequently, the application must be dismissed, and I will so order.

24. Costs should follow the event in this case.  The Minister seeks an order for costs in accordance with the Court’s scale.  The applicant did not wish to be heard on costs.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  19 November 2010