SZRES v Minister for Immigration
[2012] FMCA 792
•7 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRES v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 792 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – alleged failure to consider a claim and corroborating documents – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 476 |
| Minister for Immigration v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1 Minister for Immigration & Citizenship v CZAX [2012] FCA 873 NABEv Minister for Immigration (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 Htun v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 Dranichnikov v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 Minister for Immigration and Ethnic Affairs v GuoWei Rong (1997) 191 CLR 559 Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 |
| Applicant: | SZRES |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 381 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 31 August 2012 |
| Date of last submission: | 31 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondent: | Ms N Johnson |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The application made on 21 February 2012 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 381 of 2012
| SZRES |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 21 February 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 25 January 2012, which affirmed the decision of the delegate of the respondent Minister, made on 10 March 2011, to refuse the grant of a protection visa to the applicant.
Background
The applicant is a citizen of India. He was granted an Australian business visa on 18 November 2010, which was valid for three months from the date of entry. That visa expired on 18 November 2011 (Court Book – “CB” – CB 1 to CB 25).
On 28 November 2010, the applicant arrived in Australia. He applied for a protection visa on 10 January 2011 (CB 1 – CB 25).
Claims to Protection
The applicant claimed to have been a member of a “Latin Christian” community in Kerala (in India) and to have been a member of a Catholic youth movement (“KYCM”). He claimed to have been selected as the secretary of his archdiocese in 2001 and, in January 2009, became the parish council secretary of his local church (CB 48 to CB 49).
The applicant claimed that on 7 March 2010 a Sree Narayana Dharma Pariplana (“SNDP”) Hindu temple located next to his Church caught fire when fireworks were ignited as part of his church’s celebration of a religious festival. He claimed four members of the SNDP came to his house and accused him of having set the temple alight.
He further claimed that a First Information Report (“FIR”) was filed with the police by the owner of the property on which the Hindu temple was situated.
The applicant claimed that the SNDP had attacked his house on 30 March 2010. He had reported that to the police. In September 2010, he fled to Bangalore and then, in October 2010, to Pondicherry. He claimed to have been approached by SNDP members in both cities.
The applicant submitted a number of documents to the delegate in support of his claims. Relevantly, these were:
a)An “affidavit” in relation to his address in India (CB 58 to CB 59).
b)A FIR made by the owner of the land on which the Hindu temple was situated (CB 60 to CB 63).
c)A letter from the applicant’s church attesting to his position within the parish (CB 64).
d)Photographs of the applicant in front of a Catholic youth banner (CB 65 to CB 67).
The delegate found that the applicant was an active member of the KCYM and that he had held the position of secretary of the parish council (CB 78). However, the delegate did not accept the applicant was held solely responsible for the fire on 7 March 2010. Nor did the delegate find that the applicant was attacked due to any perceived responsibility for the fire (CB 81). The delegate was not satisfied that the applicant had substantiated a claim of a well-founded fear of persecution on the basis of his religious belief, nor for any other reason. The applicant’s protection visa application was refused (CB 83).
The Tribunal
The applicant applied to the Tribunal for review on 31 March 2011. He attended a hearing before the Tribunal on 12 October 2011 and was assisted by an interpreter in the Malayalam language (CB 89).
During the hearing the applicant gave evidence of an additional attack by Hindus in October 2010, which was not mentioned in his initial statement that accompanied his protection visa application (CB 101).
The Tribunal noted its concerns about the applicant’s credibility and the plausibility of some aspects of his claims. However the Tribunal did not ultimately deem it necessary to make a finding in relation to this (CB 103). That is because, while the Tribunal accepted some important parts of the applicant’s factual account of past harm, it was not satisfied that the applicant had a well founded fear of persecution if he were to return to India.
Specifically, the Tribunal accepted that the applicant had been the secretary of his local parish and that fireworks at a religious event caused fire and damage to the Hindu temple next to his church. It noted that an FIR has been lodged by the property owner. However, the Tribunal also found that the parish priest named in the FIR had not been subjected to any serious harm from the SNDP.
The Tribunal also accepted that the attacks on the applicant’s house, and his “encounter” with SNDP members some months later, had occurred, but that those incidents did not amount to “serious harm” (in context, as that term is understood in s.91R of the Act). The Tribunal also found that in the intervening months the applicant had faced no serious threat from the SNDP, or indeed anyone else.
The Tribunal found that the applicant faced no serious harm when he was in Bangalore, nor Pondicherry, and that he had returned to Kerala on two occasions. Those visits to Kerala were found not to be consistent with a subjective fear of persecution.
The Tribunal reasoned that if the SNDP had any real interest in harming the applicant they would have done so immediately following the fire when, “logically”, emotions would have been at their height. It found that “given the passage of time”, any threat of harm had reduced and that, as at the time of its decision, there was no real chance that the applicant would face persecution from the SNDP if he were to return to India in the reasonably foreseeable future.
The Tribunal also considered the question of state protection and whether any political interference would result in the applicant not receiving protection from the police. It found insufficient evidence to conclude that state protection would not be available.
It also considered relevant country information about the safety of Christians in Kerala. It took into account the applicant’s own evidence and found that there was no real chance that the applicant would face persecution for that reason.
Application to the Court
The application before the Court is in the following terms:
“1. The Tribunal constructively failed to exercise its jurisdiction
Particulars
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.
2. The Tribunal failed to consider an integer of Applicant’s claim, in failing to consider whether or not a Christian activist in India was at risk of harm from radical Hindus, and not able to access effective protection whilst the Tribunal formed the view that the applicant was a credible witness.
3. The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:
It failed to properly apply the consideration that applicant’s for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims are plausible, which was the case here.”
Before the Court
At the hearing, the applicant appeared in person. He was assisted by an interpreter in the Malayalam language. Ms N Johnson appeared for the first respondent. In addition to the Court Book, the Court was assisted by written submissions filed on behalf of the Minister. The applicant relied only on his application.
It was abundantly clear at the first Court date that the applicant did not have, or chose not to exhibit, any understanding of the nature of the proceedings before the Court. The former is understandable with an unrepresented applicant.
For that reason, amongst others, I sought to explain to the applicant the nature of these proceedings and emphasised the need for him to attend to, and listen carefully to, the panel lawyer on the Court’s “RRT Legal Advice Scheme” who would be appointed to provide advice to him.
I should note, lest it be thought that the applicant was without any further resource before the Court, that in his protection visa application he had stated that he spoke, read and wrote English (CB 2). Also, the applicant told the Court that he had the assistance of a “friend” in drafting the grounds of his application to the Court.
Before the Court, at the hearing, the applicant confirmed that he had consulted with the “panel” lawyer. Notwithstanding that, despite opportunity, no amended application was filed by the applicant. His oral “submissions” at the hearing before the Court were no more than that the Tribunal did not make the “right” decision, and that he had problems in India.
In the context of judicial review such complaints, on their own, cannot be seen other than as challenges to the Tribunal’s findings (Minister for Immigration v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). Such challenges, inviting as they do merits review, are of course impermissible in these proceedings. As has been said, applicants are entitled to a fair process before the Tribunal, not necessarily a “fair” outcome (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1).
In any event, I invited the applicant to go through each of his grounds before the Court and “in his own words” to tell the Court his specific complaints. As can be seen in what follows, the applicant’s failure to take up that offer in any meaningful way left his case no more advanced than as at the first Court date.
Consideration
Ground One
Ground one of the application asserts, first, that the Tribunal failed to engage in “an active intellectual process” in relation to documents that the applicant submitted to the Tribunal in corroboration of his claims. Second, that the Tribunal placed “no weight” on those documents because of its “credit findings”. Third, that it was an error for the Tribunal to assess the applicant’s credit without first assessing the substance of the corroborative documents.
It is the case that a failure by the Tribunal to give “proper, genuine and realistic consideration” to relevant evidence in a review may amount, in some circumstances, to jurisdictional error (Minister for Immigration & Citizenship v CZAX [2012] FCA 873 (“CZAX”) per Nicholas J at [46] – noting also the caution in so finding as expressed there by his Honour).
In any event, any necessity to consider the applicant’s first complaint evaporates in light of the applicant’s misrepresentation and misunderstanding of the Tribunal’s reasoning. The applicant did not particularise in his application what documents he refers to in this ground. Before the Court he made reference to the FIR and photographs. But even if the reference were to be to the four documents referred to at [8] above, it is clear that the Tribunal accepted the factual basis, or assertion, which the documents sought to support, or, otherwise, it engaged in a process of proper and genuine consideration of the documents.
First, the applicant’s “affidavit” (CB 58 to CB 59) concerned his address in Kerala as at February 2004 and that he did not have a job, nor any other source of income, at that time. How the applicant’s address in 2004 is relevant to the Tribunal’s decision was never explained before the Court. No issue arises from it. The applicant’s claim to fear persecutory harm arose from the fire incident in March 2010 (other than a general reference to the situation of Christians in Kerala – see further below).
Second, the Tribunal accepted that, as the applicant had claimed, he was the parish secretary of his church. In these circumstances, it is difficult to see what further consideration the Tribunal could have given to the letter from his church, or what further corroboration the letter could be said to provide.
Third, as to the FIR, the Tribunal accepted that the Church’s religious celebration caused a fire at the temple next door, and that an FIR had been created as a result of the complaint made by the property owner.
While it is the case that the church letter asserts that the applicant was the “publicity convenor during Jubilee celebration …2010” (CB 64) the Tribunal found that the applicant, unlike the parish priest, was not “named” in the FIR. That was plainly open to the Tribunal on any reading of the FIR. Further, there was no suggestion at any time that the priest was subjected to any serious harm as a result of the fire.
In any event, the Tribunal’s findings, and the reference to the FIR in its analysis, plainly argue against the applicant’s attack that the Tribunal failed to engage with the document in an “active intellectual process”. For the Court to go further would ignore the caution emphasised by Nicholas J in CZAX (at [46]) and fall into the trap explained by his Honour:
“[46] The failure of a Tribunal which is amenable to judicial review for jurisdictional error to give “proper, genuine and realistic consideration” to evidence relevant to a review conducted under the Act may constitute jurisdictional error. Ultimately, however, the question that must be addressed is whether there has been a failure on the part of the Tribunal to exercise its jurisdiction in accordance with the requirements of the Act. The fact that a Tribunal has not given “proper, genuine and realistic consideration” to evidence may or may not justify a conclusion that there has been such a failure. Whether or not it does so depends upon what that expression means. Caution must be exercised before finding that a Tribunal had committed jurisdictional error because it did not give ‘proper, genuine and realistic consideration’ to evidence. Epithets of that kind ‘[t]aken out of context and without understanding their original provenance ... are apt to encourage a slide into impermissible merits review’: Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45] per Basten JA (with whom Allsop P agreed) cited in Minister for Immigration v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [30].”
Nor did the photographs advance the applicant’s case beyond that which had been accepted by the Tribunal. That is, that the applicant was involved in church affairs.
To the extent that the applicant complains that the Tribunal gave “no weight” to his documents, for the reasons set out above, that must be rejected. In any event, the weight to be assigned to such material is for the Tribunal to determine (Wu Shan Liang).
To the extent that the ground may imply that the Tribunal adversely assessed the applicant’s credit, as is clear, the disposition of the applicant’s case did not turn on any adverse credibility finding. The Tribunal accepted much of the applicant’s factual account, despite its concerns about the applicant’s credibility. The Tribunal’s conclusion turned on its finding that none of the claims revealed that the applicant faced a real chance of serious harm if returned to Kerala.
The applicant’s failure to understand that now, explains his criticism that the Tribunal was in error in assessing his credibility before considering the substance of the documents. The Tribunal plainly considered the substance of the FIR. Its other findings proceeded on the basis of its acceptance of what was asserted in those documents. Ground one is not made out.
Ground Two
The applicant’s second ground contains two complaints. First, that the Tribunal failed to consider whether, as a Christian activist in India, the applicant was generally at risk of harm from radical Hindus. Second, that the Tribunal failed to consider whether the applicant would be able to access effective protection. Again, the complaint is that the Tribunal fell into this error because it found that the applicant was not a credible witness.
In regard to the latter complaint (credibility), as set out above, that was not the reason, or a part of the reason, for the affirmation of the delegate’s decision.
A failure to consider a claim, or an integer of a claim, may well lead to jurisdictional error (NABEv Minister for Immigration (No.2) [2004] FCAFC 263; (2004) 144 FCR 1, Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244). Such failure in relation to consideration of a particular social group may also lead to jurisdictional error (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26). However, I cannot see that any such claim was expressly made. Nor can it be said to clearly arise from the circumstances presented.
The applicant’s claim to fear persecutory harm, as he himself presented it, arose from the fire to the Hindu temple. There was no suggestion by the applicant that he had difficulties from radical Hindus, or any Hindus, prior to that incident.
What he claimed occurred after that incident was directed at him because of what he alleged was perceived by the Hindus. Namely that he was responsible for the fire. There was no suggestion, for example, that the Hindus ever took any action against other Christians in his area. Apart from the priest being named in the FIR the applicant did not claim that anything further was done against priest, let alone that the priest suffered serious harm because he was a Christian.
Before the Court the applicant submitted that he had “told” the Tribunal “at the interview” that as a Christian he feared harm from Hindus. He was however unable to point to any part of the hearing to support that assertion.
The difficulty for the applicant is compounded when regard is had to the one reference to the general situation of Christians in Kerala in the Tribunal’s unchallenged account of the hearing ([65] at CB 103). (Despite opportunity, the applicant did not provide any transcript of the hearing to reveal inconsistency with the Tribunal’s account).
“[65] In relation to the situation of Christians in Kerala, the applicant testified that normally there is not much happening in relation to them.”
I cannot see that this allows for any submission that the applicant’s circumstances as presented raised a claim that he feared harm as a Christian from Hindus beyond the harm he claimed to fear from them as a result of the fire. In any event, the Tribunal’s relevant finding ([85] at CB 107) was sufficient to deal with the matter as it arose:
“[85] The applicant in his testimony confirmed that Christians are a significant minority and that as he testified the situation of Christians in Kerala is generally quiet and that not much happens. For these reasons, the Tribunal that there is no real chance that the applicant would face persecution at the hands of the SNDP were he now to return to India.”
Further, the Tribunal also considered the question of the effectiveness, or adequacy, of state protection. That was in the context of the claims expressly advanced by the applicant and also those arising from the circumstances presented. Its findings were reasonably open to it on the applicant’s evidence and country information before it ([79] – [81] at CB 105 to CB 106). No legal error is revealed here.
Ground Three
The third ground asserts that the Tribunal erred because it failed to give the applicant the benefit of the doubt and find on the evidence that he was a refugee. Particularly, in circumstances where it “… entertained the possibility that the applicant’s claims are plausible” (the applicant’s grounds).
What is immediately obvious is that whoever drafted the applicant’s ground has failed to note, or chose to ignore, the inconsistency between asserting that the Tribunal found adversely to the applicant on the basis of an adverse credibility finding (grounds one and two) and that it, at least, “entertained” the possibility that the claims were plausible (ground three).
In relation to “benefit of the doubt”, to the extent that the applicant may be taken to rely on what is set out at paragraphs 203-204 of the “UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status”, I note that the Handbook does not have binding force in Australian law. However, it may be a useful reference for those whose task it is to determine whether or not a person is a refugee (Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 392, per Mason CJ, Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 302, per Kirby J, Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [8] – [9], per Finn J).
Where the Tribunal’s finding as to a claim, or an aspect, or integer of a claim, is attendant with any real doubt, the Tribunal is required to consider the alternative. That is, that its finding may be incorrect, and then to determine whether an applicant may have a well-founded fear of persecution for a Convention reason in those circumstances: (Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ (endorsed in Abebe v the Commonwealth [1999] HCA 14; (1999) 162 ALR 1, and further explained by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719, per Sackville J with whom North J agreed)).
Sections 65 and 36(2) of the Act require that the (relevant)
decision-maker must be satisfied that the applicant is a person to whom Australia owes protection and, in the absence of such satisfaction, a refusal decision is mandated (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] - [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] - [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
Ultimately, the irony in this complaint is that the Tribunal did give the applicant the benefit of the doubt. Despite its misgivings about his credibility it proceeded on the basis as if most of his factual assertions were true.
That that did not result in a conclusion that the applicant fell within the definition of “refugee” was simply as a result of the Tribunal’s evaluation of the evidence before it, and the weight it attributed to it. The Tribunal’s findings in that regard were part of the exercise of its jurisdiction as the finder of fact. Those findings of fact were reasonably open to it. Its conclusion was probative of those findings. In light of that, the applicant’s complaint does not rise above a request for impermissible merits review (Wu Shan Liang).
Conclusion
None of the grounds the applicant has put before the Court reveal jurisdictional error on the part of the Tribunal. Nor is any such error revealed by what the applicant said before the Court. In those circumstances, the application to the Court should be dismissed. I will make an order accordingly.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 7 September 2012
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