SZRJR v Minister for Immigration
[2012] FMCA 1177
•13 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRJR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1177 |
| MIGRATION – VISA – Protection Visa – Protection (Class XA) visa – Application for review of decision of Refugee Review Tribunal – citizen of Nepal – claim of fear of persecution on grounds of religious belief – where Applicant formerly a Hindu priest – where Applicant converted to Christianity – whether the Tribunal had a duty to inquire – duty imposed on the Tribunal is a duty to review – where Applicant’s claim of being at a heightened risk of persecution because of his particular circumstances merely speculative – no reviewable error. |
| Migration Act 1958 (Cth), ss.36, 91R, 91X, 414, 474 |
| Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 SZATV v Minister for Immigration (2007) 233 CLR 18 SZFDV v Minister for Immigration (2007) 233 CLR 51 SZNKV v Minister for Immigration and Citizenship & Anor [2010] FCA 56 |
| Applicant: | SZRJR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 842 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 November 2012 |
| Date of Last Submission: | 15 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Newman |
| Solicitors for the Applicant: | Newman & Associates |
| Counsel for the First Respondent: | Ms Kaur-Bains |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The Amended Application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 842 of 2012
| SZRJR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision by the Refugee Review Tribunal affirming a decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa. The Tribunal made its decision on 21st March 2012.
By his amended Application, foreshadowed at the hearing and filed on 19th November by leave of the Court, the Applicant seeks orders that the decision of the Tribunal should be quashed and a writ of mandamus should issue, requiring the Tribunal to determine the Applicant’s application for a visa according to law.
The grounds of the Application are:
The second respondent erred in its jurisdiction when it failed to enquire as to the issue of heightened risk to the applicant because of his singular circumstances, his attributes and his antecedents, these factors (possibly) indelibly stamping him as a Hindu and if his conversion to Christianity would be viewed as treachery by Hindu worshippers.
Particulars
The applicant had been a practising Hindu priest, was from a priestly caste and a member of a priestly society and bore the name of K*****[1], a priestly name.
[1] The name is not published in compliance with s. 91X of the Migration Act 1958
The Applicant’s original application was filed on 17th April 2012.
The Minister filed a Response on 30th April 2012, saying simply that the decision of the Tribunal was not affected by jurisdictional error.
Background
The Applicant is a citizen of Nepal. He arrived in Australia on 27th November 2010. On 3rd February 2011 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa.
In his application, the Applicant claimed that he was born in eastern Nepal of a higher Hindu caste. His whole generation had been high level priests. He first arrived in Australia in September 2008 with his wife who came to study in this country. Living with the Nepalese community in Sydney, he met a lot of Nepalese Christians who were all from Hindu families and had later converted to Christianity. He started to go to church, initially to know people within the community, but later was so impressed with what he heard from the New Testament that he became a Christian.
In his statement, the Applicant said that he returned to Nepal on 6th October 2010. He told his family about his conversion to Christianity and they became angry with him. He also told other people, but he was not well received:
My villagers and my family become very angry with me and KULPUJA committee attack me with sticks and knives (Khukuri). They accused me bringing the cow eating religion in destroying belief and tradition. They reported me to the police who charged me “Forcefully converting people into Christianity and destroying community peace and harmony”.[2]
[2] Court Book at 8
The Applicant went on to claim:
I had to run away from my village to save my life. I arrive in Kathmandu but it was not safe there as well. So I flew back to Australia on 26th November 2010.
So as an evangelical Christian my life is not safe in Nepal.[3]
[3] Ibid
On 23rd February 2011 the Department of Immigration and Citizenship invited the Applicant to attend an interview with an officer of the Department on 23rd March 2011. The Applicant attended the interview.
The Applicant provided a number of documents to the Department in support of his claim, comprising:
a)A letter from a counsellor at STARTTS (Service for the Treatment and Rehabilitation of Torture and Trauma Survivors) saying that the Applicant not capable of paid employment as a consequence of his symptomatic presentation;[4]
b)A four-page typed statement in which he described his fear of returning to Nepal on account of his Christian religion;[5]
c)A print-out of a document from the Internet about Christians in Nepal being afraid to go to church for fear of Hindu extremists;[6]
d)Two references from St Luke’s Church at Liverpool;[7]
e)A Certificate of Baptism;[8]
f)A church service roster showing the Applicant’s name;[9]
g)Three statutory declarations;[10]
h)A Lifetime Membership Receipt from the Poudel Khatri Society in Kathmandu;[11]
i)An authority from the Poudel Khatri Society;[12] and
j)Two documents in the Nepali language.[13]
[4] Court Book 40
[5] Ibid at 41-44
[6] Ibid at 45
[7] Ibid at 46-47
[8] Ibid at 48
[9] Ibid at 49-50
[10] Ibid at 51-53
[11] Ibid at 54
[12] Ibid at 57
[13] Ibid at 55-56
The Applicant’s Application for a Protection (Class XA) visa was refused on 6th May 2011.[14]
[14] Ibid at 58-61
In the Protection (Class XA) Decision Record that accompanied the Department’s letter to the Applicant, notifying him that his application had been refused, the Minister’s Delegate stated that he was not satisfied that the Applicant faced a real chance of persecution for a Convention reason in the reasonably foreseeable future if he were to return to Nepal.[15]
[15] Ibid at 72
The Delegate also found that the Applicant had a legally enforceable right to enter and reside in India and was not satisfied that he would be at risk of being returned to Nepal by Indian authorities, and stated:
I therefore find that the applicant has effective protection in India as a third country under section 36(3) of the Migration Act.[16]
[16] Ibid at 67
The Delegate’s reasons for his decision are set out at pages 69 to 72 of the Decision Record. The Delegate was satisfied that the Applicant had converted to Christianity and had been active in practising his faith. He also accepted that the Applicant had engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee and therefore did not disregard that conduct as set out in subsection 91R(3) of the Migration Act.
The Delegate found that country information supported the Applicant’s claims that he experienced social ostracism, hostility and discrimination from his home village. However, the Delegate was not satisfied that the Applicant’s fear of persecution in Nepal for the reason of his religious conversion was well-founding, saying:
I find that the harm feared from his relatives and villagers is essentially in the form of social ostracism, and I find that the applicant’s fear of harm is localised to his home village…[17] I am satisfied that the applicant would be able to relocate away from (his home village) and find safety in another part of Nepal, such as in Kathmandu.[18]
[17] The name of the village is not published
[18] Court Book 70
The Delegate went on to find that while proselytising is banned in Nepal there are no reported cases of people having been prosecuted. Accordingly, the Delegate was not satisfied that the Applicant would face a real chance of prosecution under anti-proselytising laws if he were to return to Nepal.
Accordingly, the Delegate was not satisfied that the Applicant was a person to whom Australia has protection obligations for the purposes of section 36 of the Migration Act and refused the application for a Protection (Class XA) visa.
Application to the Refugee Review Tribunal
After his application for a protection visa was refused, the Applicant applied for a review of the Delegate’s decision by the Refugee Review Tribunal. His application was received by the Tribunal on 23rd May 2011.
The Tribunal wrote to the Applicant on 28th June 2011, inviting him to attend a hearing that was scheduled to take place on 29th July 2011.
The Applicant appointed the Refugee Advice and Casework Service (Aust) to act on his behalf and authorised Ms Kate McCrossin, Solicitor and Migration Agent, as his authorised Recipient.
On 27th July 2011 Ms McCrossin forwarded to the Tribunal a Statutory Declaration by the Applicant and a written submission.
In his Statutory Declaration, declared on 22nd July 2011, the Applicant stated that he feared returning to Nepal because of his conversion to Christianity. His fears concerned his family, including his wife’s family, people from his village, and members of the Poudel Khatri Society and members of other Hindu extremist organisations. He claimed that he was of a high caste, having come from a long lineage of Hindu priests. He stated that:
I am considered by my family and the Hindu community to have fallen from very far from my original position in Nepalese society as a result of my conversion to Christianity. Consequently, I am in a very different position to the majority of Christians in Nepal.[19]
[19] Court Book 92
The Applicant claimed to fear harm from various Hindu organisations opposed to Christianity in Nepal, stating:
In contrast to the vast majority of other Christians in Nepal, I believe that I am more likely to be a target of these organisations because of my previous role as an assistant to the priests in my community. In addition, because of my past involvement in the World Hindu Federation and the Poudel Khatri Society, I am easily recognised by members of these organisations.[20]
[20] Ibid 94
The Applicant also stated that he feared harm from his own father who, he said, had killed his mother.
The Applicant also claimed that it would not be safe for him to live in Kathmandu, because that is where the head office of the Poudel Khatri Society is located, and his conversion to Christianity is public knowledge. He further claimed that it would not be safe for him to relocate to India, because Christians who proselytise are targeted in India. He believed that he would be at greater risk than other Christians in India because of the connection between the Hindu extremist organisation Shiva Sena in Nepal and the Shiva Sena organisation in India.
The Applicant’s Solicitor/Migration Agent, Ms McCrossin, provided a detailed eleven page submission to the Tribunal, concluding by saying at paragraphs [37] and [38]:
As a consequence of his individual circumstances, (the Applicant) is perceived differently by those from whom he fears persecution and consequently (the applicant) is at greater risk of harm than the majority of Christians in Nepal.
Independent information regarding Nepal indicates that Christians in Nepal face a serious risk of harm, in particular from religious extremist groups, and that the Nepalese security forces are unwilling and unable to provide effective protection.[21]
[21] Court Book 111
The Tribunal postponed the hearing on 29th July 2011 and rescheduled it to 14th September.
On 1st August 2011, after the Tribunal had postponed the hearing, the Tribunal Member sent a Request to the Tribunal’s Country Adviser asking a variety of questions:
1. Can you please provide information confirming that the applicant’s father was the “Dhami” and the senior priest and the applicant was the assistant priest of the KULPUJA community in (name deleted) who presided over 150 households of their same caste?
2. Is there any available information regarding whether the applicant and his father are involved in the Poudel Khatri Society (PKS)?
3. Can you please provide information regarding whether the applicant is a lifetime member of the PKS?
4. Can you please provide information confirming the publication on 15 June 2011 on the “Citizen’ by the PKS notifying that the applicant was “suspended from maintaining lifelong membership and the position of an assistant priest” for becoming a Christian against policy and tradition of PKS and for converting others into Christianity. Is this a national newspaper? What is its circulation? Is this circulated in all the areas where the PKS has branches?
5. Is there any available information regarding whether the applicant and his father are high-caste and high profile Hindus?
6. Can you please provide information whether the applicant is a life member of the WHF?
7. Is the practice of Christianity or any other religion legal in Nepal?
8. Is proselytising illegal in Nepal?
9. What is the Nepali government’s attitude towards religion and religious practice in Nepal, in particular towards Christianity?
10.Do Hindus who convert to another religion including Christianity face family, community and societal problems and if yes, what is the nature of these problems?
11.What state protection would be afforded to Hindus who convert to Christianity?[22]
[22] Court Book 121-123
On 29th August 2011 the Refugee Advice and Casework Service forwarded to the Tribunal two Statutory Declarations and four letters of support for the Applicant.
The Applicant attended the Tribunal hearing on 14th September 2011, accompanied by Ms McCrossin. He gave evidence with the assistance of a Nepali language interpreter.
The Tribunal adjourned the hearing to 17th October 2011.
The Applicant attended the hearing. On this occasion he was accompanied by another solicitor, Ms Browne, as Ms McCrossin had advised that she was required to attend hearings on Christmas Island. The Tribunal arranged for the same interpreter to attend the hearing. The Applicant provided a further reference to the Tribunal, from Ms Helen Binns of St Paul’s Anglican Church.
After the Tribunal hearing, Ms McCrossin faxed a further submission to the Tribunal dated 4th November 2011 and provided a two-page statement from the Applicant.
The Tribunal made its decision on 21st March 2012, affirming the decision of the Minister’s Delegate not to grant the Applicant a Protection (Class XA) visa.
The Refugee Review Tribunal Decision
In its Decision Record, under the heading “Claims and Evidence”, the Tribunal noted the details of the Applicant’s claims from his Protection visa application, along with the various documents that the Applicant had submitted.
The Tribunal gave an extensive summary of the Applicant’s evidence under the following headings:
·Relevant personal background of the applicant
·The applicant’s Australian immigration history and other relevant marital information
·The applicant and his ex/estranged wife’s religious background
·Applicant’s religious practice in Australia and its impact on his relationship with his ex/estranged wife
·Applicant’s religious conduct in Nepal in October 2010 and its consequences
·The applicant’s reasons for seeking protection in Australia
·Considerations of the applicant’s bases for fearing persecution
·Other considerations[23]
[23] Court Book 180-189
The Tribunal considered relevant country information, set out on paragraphs [59] to [66] of the Decision Record.[24] The country information is set out under six sub-headings:
a)Is the practice of Christianity or any other religion legal in Nepal?
b)Is proselytising illegal in Nepal?
c)What is the Nepali government’s attitude towards religion and religious practice in Nepal, in particular towards Christianity?
d)What is the attitude of Nepal’s dominant religious groups, who are Hindus, towards other religious groups including Christian groups?
e)Do Hindu converts to another religion including Christianity face family, community and societal problems and if yes, what is the nature of these problems?
f)What state protection would be afforded to Hindus who convert to Christianity who suffer any type of harm from Hindus, Hindu religious groups, family members, community and the society?[25]
[24] Ibid 189-196
[25] Court Book 189-196
In its Findings and Reasons, the Tribunal found that the Applicant is a citizen of Nepal and assessed his claims against Nepal as his country of nationality.
The Tribunal found that the Application had a well-founded fear of being persecuted for reasons of his religion if he were to return to a rural area in Nepal, including his home village. The Tribunal accepted that the Applicant had been a Hindu but had converted to Christianity between 2008 and October 2010. The Tribunal also accepted that the Applicant had proselytised his Christian religion in Australia and, on that basis, accepted his claim that he would proselytise his religion in Nepal if he were to return there.
The Tribunal accepted country information that:
a)Nepal is constitutionally a secular state where conversion to another religion is allowed;
b)Close to one million Nepalese citizens are Christians;
c)Christians are able to practise their religion openly;
d)There exist occasional incidents of abuse, discrimination and ostracism by Hindus;
e)Larger urban areas in Nepal are more tolerant than rural areas of minority religious communities; and
f)Christian sometimes escape local discrimination and persecution by moving to larger urban areas including Kathmandu and the city of Bidur, about 26 kilometres from Kathmandu, where they can practise their religion safely.
Based on that information, the Tribunal was satisfied that if the Applicant were to return to his home village or to any other rural area in Nepal, there was “a substantial basis or a real chance that he will face persecution because of ‘his religion’.[26]
[26] Court Book 198 at [79]
The Tribunal then proceeded to refer to the “internal relocation principle”, as described by the High Court in SZATV v Minister for Immigration[27] and SZFDV v Minister for Immigration[28]. The Tribunal described the principle in these terms:
…under the internal relocation principle, Australia will have no protection obligation to the applicant if it is reasonable for him to safely relocate in a region in Nepal where there is no appreciable risk of the occurrence of his feared persecution.[29]
[27] (2007) 233 CLR 18
[28] (2007) 233 CLR 51
[29] Court Book 198 at [82]
The Tribunal found that, on the basis of the country information, it was reasonable for the Applicant to relocate to larger urban areas in Nepal such as Kathmandu or Bidur “because in these places there is no appreciable risk of the occurrence of his feared persecution.”[30]
[30] Ibid at 198-199 at [83]
The Tribunal went on to consider the Applicant’s claim that he was at greater risk than other Hindus who had converted to Christianity because he was an ex Hindu priest who had an ancestral priest heritage. The Tribunal stated:
The Tribunal considers that this claim or fear of the applicant is merely assumed by him or based on mere speculation. This is because there is no independent evidence before the Tribunal that an ex Hindu priest who also has priest heritage ancestrally and who has converted to Christianity or who is a Christian or who is a Christian proselytiser has been harmed in larger urban areas in Nepal such as Kathmandu or Bidur by Hindus or by “the persecutory groups”. He gave evidence himself that he cannot predict whether or how he will be targeted for “his religion” by “the persecutory groups” because he does not know of any Hindu priest who has converted to Christianity in Nepal before.[31]
[31] Ibid at 199 [86]
The Tribunal was not satisfied that the Applicant had a well-founded fear of being persecuted for a Convention reason if he were to return to Nepal at the time of the hearing or in the reasonably foreseeable future. Thus, the Tribunal was not satisfied that that the applicant was a person to whom Australia has protection obligations under the Refugees Convention and therefore did not satisfy the criterion set out in paragraph 36(2)(a) of the Act for a protection visa.
Application for Judicial Review
The Applicant submits that the Tribunal fell into error by not enquiring whether, in the light of the Applicant’s idiosyncratic circumstances and with his particular attributes, the Applicant stood any heightened risk of persecution.
The Applicant referred the Court to the decision of the High Court in Minister for Immigration and Citizenship v SZIAI[32], where it was held at [25]:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries had led to references to a “duty to inquire”. That term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. 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 the 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[33]. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.[34]
[32] [2009] HCA 39; (2009) 259 ALR 429
[33] Footnote omitted
[34] (2009) 259 ALR 429 at 436 [25] per French CJ, Gummow, Hayne, Kiefel, Crennan and Bell JJ
The Applicant submitted that the Minister’s Delegate, despite having claims of Hindu ancestral heritage and priestly duties, treated those claims as amounting to “run of the mill Christian conversion”. It was submitted that the Delegate found there was no heightened risk to the Applicant because of “his holy ancestry and deputy leadership of the Hindu community in his region” and the claim was not even considered by the Delegate. The claim was repeated at the Tribunal, which had a statutory duty under s. 414 of the Act to review the decision.
Mr Newman, for the Applicant, conceded that the Tribunal gave some detailed attention to the claim of heightened risk at one stage, describing the claim as amounting to an “enhanced risk”, but rejected it on what he described as “the dubious ground that there was no independent evidence to support it without first making this critical enquiry of its expert team when it could have conveniently done so at the time when it posed other important questions”.
This, he submitted, was a failure to make an inquiry amounting to a failure to review.
Counsel for the Minister, Ms Kaur-Bains, relying on that same paragraph in Minister for Immigration and Citizenship v SZIAI[35], submitted that it is not appropriate to speak of the Tribunal being under a duty to inquire. The duty imposed on the Tribunal 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 the sufficient link to the outcome to constitute a failure to review, which could give rise to jurisdictional error (see also SZNKV v Minister for Immigration and Citizenship[36]).
[35] supra
[36] [2010] FCA 56
It was submitted, however, that this is not such a case. There is nothing to suggest that any further inquiry by the Tribunal could have yielded a useful result. The Tribunal noted the applicant’s own evidence that he could not predict whether or how he would be targeted for the heightened risk that he alleged because he did not know of any Hindu priest who had converted to Christianity in Nepal. The Tribunal’s country information did not point to anyone in the Applicant’s position having a heightened risk of persecution.
Thus, it was submitted that there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake a statutory duty to review the Applicant’s claims.
The Tribunal noted that the Applicant’s claim that he was at a heightened risk of persecution was merely assumed or based on mere speculation. Ms Kaur-Bains submitted that the tribu7nbal’s reasons are consistent with the majority in Minister for Immigration and Ethnic Affairs v Guo[37] at 572, where it was stated that no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[37] (1997) 191 CLR 559
Conclusions
The Tribunal has a duty to review an application under s. 414(1) of the Migration Act, which states:
(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.
The Applicant’s case is that the Tribunal failed to carry out its statutory duty to review the application by not making its own inquiry about his claim that there was an enhanced risk of his being harmed by the Hindus or other “persecutory groups” because of his claim that he was a high profile Hindu. However, as Kenny J held in SZNKV v Minister for Immigration and Citizenship[38] at [34]:
This is not one of those rare or exceptional cases in which an obligation to inquire might be said to arise having regard to all the circumstances of the case.
[38] supra
The Tribunal did consider the Applicant’s claim that he was at a higher risk of being harmed because he was a former Hindu priest from a family of priests. However, the Tribunal dismissed the claim for several reasons.
First, the Tribunal noted that the Applicant himself had given evidence that he could not predict whether or how he would be targeted because he did not know of any former Hindu priest who had converted to Christianity in Nepal.[39]
[39] Court Book 199 at [86]
Second, the Tribunal accepted that the Applicant was a high caste Hindu but did not accept that he was at a greater risk for this reason, finding that this claim was merely assumed or based on speculation. There was no independent evidence of a high caste Hindu who had converted to Christianity or who was a Christian or a Christian proselytiser having been harmed in a larger urban area in Nepal such as Kathmandu or Bidur.[40]
[40] Court Book 200 at [87]
Third, the Tribunal did not accept the Applicant’s claim because it was not satisfied that the Applicant was a high profile Hindu in Nepal. The Tribunal examined the Applicant’s claim in this regard as to his background but said:
The Tribunal does not accept that this background makes him a high profile Hindu in Nepal. There is no independent evidence supporting this claim except evidence from PKS about his and his father’s membership of this group.[41]
[41] Ibid at [88]
The Tribunal considered this aspect of the Applicant’s claim thoroughly and dismissed it as mere speculation, because there was no evidence to support it. Thus, there was no “obvious inquiry about a critical fact” that the Tribunal could have, or should have made. There is nothing to show that any further inquiry by the Tribunal would have provided any further information. The Applicant’s claim was mere speculation without any evidentiary basis and did not impose on the Tribunal any duty to make any further inquiry.
There was no failure to review leading to jurisdictional error. In the absence of jurisdictional error the Tribunal decision is a privative clause decision and is not subject to any order such as certiorari or mandamus (see s. 474 of the Act).
It follows that the Application will be dismissed. The Minister seeks an order for costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 7 December 2012
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