SZRMO v Minister for Immigration and Citizenship

[2014] FCA 235

FEDERAL COURT OF AUSTRALIA

SZRMO v Minister for Immigration and Citizenship [2014] FCA 235

Citation:	SZRMO v Minister for Immigration and Citizenship [2014] FCA 235
Appeal from:	SZRMO & Anor v Minister for Immigration & Anor [2012] FMCA 1216
Parties:	SZRMO and SZRMP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:	NSD 135 of 2013
Judge:	FARRELL J
Date of judgment:	19 March 2014
Catchwords:	MIGRATION – appeal from Federal Magistrates Court – judicial review of decision of the Refugee Review Tribunal – jurisdictional error – whether failure to consider all elements of appellants’ claim – whether failure to consider evidence – whether invitation to impermissible merits review – no jurisdictional error demonstrated – appeal dismissed
Legislation:	Federal Circuit Court of Australia Amendment Act 2012 (Cth) Migration Act 1958 (Cth)
Cases cited:	SZRMO v Minister for Immigration & Citizenship [2012] FMCA 1216
Date of hearing:	1 May 2013
Date of last submissions:	1 May 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	31
Counsel for the Appellants:	The appellants appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms SA Given of Minter Ellison
Solicitor for the Second Respondent:	The second respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 135 of 2013

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZRMO
First Appellant

SZRMP
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	19 MARCH 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants pay the costs of the first respondent as agreed, or failing agreement, as assessed.

Note:Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 135 of 2013

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZRMO
First Appellant

SZRMP
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FARRELL J
DATE:	19 MARCH 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Federal Circuit Court of Australia Amendment Act 2012 (Cth) came into effect at midnight on 11 April 2013. The Federal Magistrates Court now continues its existence as the Federal Circuit Court of Australia and a Federal Magistrate is now known as a judge of that Court. In preparing these reasons, I have adopted the terminology used after 11 April 2013 even though the decision under review was made before that date.

2. This is an appeal from a decision of Judge Nicholls of the Federal Circuit Court delivered on 19 December 2012: SZRMO & Anor v Minister for Immigration & Citizenship & Anor [2012] FMCA 1216 (SZRMO).  The primary judge dismissed an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (Tribunal). The Tribunal’s decision affirmed the decision of a delegate (Delegate) of the first respondent (Minister) not to grant Protection (Class XA) visas (protection visas) to the appellants.

3. The first appellant is the wife (wife) of the second appellant (husband). The appellants are citizens of India who most recently arrived in Australia on 26 June 2011. At that time, the wife held a student visa; she first came to Australia on 1 November 2008. On 8 August 2011, the wife applied for a protection visa. The husband applied for a protection visa as a member of the wife’s family unit, and therefore relied on her claims to protection.

   CLAIMS 

4. The wife’s claims were set out in a statement which accompanied her visa application. The statement contained extensive commentary on the caste system in India and attached six documents. 

5. The wife says that she is a Hindu of the Leva caste and was brought up in an orthodox Hindu family. Her father was a public servant and had a senior position in the “Leva Patel Patidar Samaj (Society)” which promotes Hindu customs and beliefs. Although the younger generation was not interested in holding on to their parents’ customary beliefs, as a “Patel” she was expected to live according to Hindu traditions.  The younger generation did not support attacks on Muslims by Hindus and Patels.

6. The wife claims to fear harm in India from Muslims.  She says that when she went to college to obtain her degree, she found that Muslims and Hindus mixed freely.  She became friends with a male law student who was a Muslim (Mr Kader).  In January 2004, as she neared completion of her degree, he asked her to marry him. She rejected his proposal and “admonished him” for his misunderstanding of their friendly relationship.  After that, Mr Kader followed her about, and her parents came to know about his attraction to her.  Despite her pleas to her parents not to hurt him, Mr Kader was attacked by a mob of street sweepers and cleaners and he was severely hurt. As a result of this attack, there was a confrontation between the wife’s family and Mr Kader’s family and the police were called.  Mr Kader’s family told the police that the wife’s father had ordered the attack.  The police took them all to the police station and questioned them about the relationship between the wife and Mr Kader.  They were released and ordered not to cause trouble on pain of arrest and imprisonment.  The Patel community discussed the issue and bribed the police to keep it quiet. 

7. After she completed college in March 2004, the wife’s parents tried to suggest a number of possible husbands.  There was an incident late in 2004, when Muslim youths followed the wife’s family in a car and made threats when the family was visiting a Hindu temple. Her father reported the incident to the police; they said her father created the problem and he should solve it.   There were street fights between lower caste Hindus and Muslims near her family home.  At a meeting between the families at a police station to settle the matter, the wife explained to Mr Kader her distress that he had been hurt and asked that they become friends. He explained his family were angry that she had deceived him and he asked her again to marry him to solve the problem.  The police told them to settle the matter and they were allowed to leave.  When her father learned that Mr Kader was still interested in her, the father insisted the wife marry and leave India “before it was too late”. The wife was “given in marriage” to the husband, who was well known to the wife’s family. They “had admiration” for one and another, having met at Patel Hindu celebrations.  After they married and moved into the husband’s house Muslims continued to attack them, and the wife could not leave the house for fear of attack. 

8. When the appellants left India, things settled down, but the husband’s family told them that they were still watched by the Muslims.  In May 2011, the wife decided to go back to India to make arrangements with her parents to get money to continue her studies.  The husband did not go with her.  She feared to go to her home, so she stayed with her parents-in-law and her parents visited her there.  In June 2011, there were riots in the region and a Pakistani terrorist organisation was “found” to be involved in an attempt to create communal tensions.  On 19 June 2011, while shopping with her mother-in-law, the wife was doused in acid thrown from a car driven by Muslim men. The wife was unhurt physically, though her clothes were destroyed.  She “was sure” that her attackers were the same people who had tried to hurt her before. She was “sent out of India before the Muslims came in search of” her again.

9. The wife says the tensions between Muslims and Hindus in her region will not stop.  She cannot return to India as she was noted by fanatic Muslims with connections to Pakistani militants who want to take revenge on her for hurting Mr Kader. Now that she is married, Mr Kader’s friends will not leave her alone.  She could not relocate to another area in India as Muslims could trace and kill her.

10. Following an interview, the Delegate refused to grant protection visas on 10 October 2011.   At the interview, the wife said:

    ·Having arrived on 1 November 2008 in Australia, she did not make an application for a protection visa until 8 August 2011 because she was on a student visa, liked to study and thought she would stay in Australia.

    · She feared returning to India but did so in May 2011. Her husband did not go with her because of threats made against him by Mr Kader due to her marriage. She returned because she needed money.

    ·She cannot trust the Indian police because Mr Kader is a “big person and the police do not act against big people”. He is a “big solicitor”. She had been to the authorities but was told “you created the problem you fix it”.  After the acid attack on her, the authorities said that her father had created the problem and she should solve it.

    ·She says Mr Kader will kill her husband and then kidnap, rape and marry her.

    ·She fears not only Mr Kader but his family, friends and Muslims as a whole. Muslims do not like Hindus and will make trouble.  Mr Kader has attacked her brothers.

    ·Her father blames her for the troubles. Her whole family is in danger. Her father tells her not to return because there will be bigger problems for the family. After her marriage, there was a bomb blast by the Muslims in the area she lived in because she did not marry Mr Kader.

    ·Relocation will not help. She moved within her region but Muslims came and harassed her. They will find her in other States should she move.

    TRIBUNAL DECISION

11. On 10 April 2012, the appellants attended a Tribunal hearing with the assistance of an interpreter. The Tribunal decided to affirm the Delegate’s decision on 16 April 2012 because it was not satisfied of the credibility of the appellants’ account of being targeted by Muslims as a result of Mr Kader’s unrequited love. 

12. The Tribunal found that there was nothing in the information before it about manifestations of communal violence in the appellants’ home city at the time of the wife’s visit in May 2011 and her evidence was “notably confused” about it. The Tribunal was not satisfied that rioting took place. The Tribunal also found it difficult to accept that if a personal dispute between the wife’s family and Mr Kader’s family triggered communal rioting or other violence that this would not have been reported in the media if her father was a well-known member of the Hindu cultural society and Mr Kader was “famous”, a “big lawyer” and well-connected at the mosque. The Tribunal found unconvincing the wife’s suggested reasons for the lack of media attention (her father’s prominence enabled him to suppress media comment and the police did not accept the complaint) and this cast doubt on the credibility of her claims and her evidence generally: at [60]-[62].  The Tribunal also doubted the credibility of her claims concerning the position held by Mr Kader, given his age and recent graduation as a lawyer, despite claims that his influence derived from his connections at the mosque. The Tribunal found the appellants’ responses to questions about this and Mr Kader’s connections with terrorists vague and uninformative: at [63]-[64].

13. Notwithstanding that the Tribunal considered the information provided by the appellants as “vague and shifting” and unsupported by external evidence, the Tribunal was nevertheless willing to give the appellants the benefit of the doubt and accepted that Mr Kader did exist and did develop feelings for the wife. The Tribunal was not willing to accept that the relationship caused conflict between the families or respective communities and it rejected the specific instances of claimed harm or threats of harm to the appellants and their families. The Tribunal was reinforced in this view by the appellants’ delay of one month in leaving India after they received their visas on 4 October 2011 and the fact that the wife returned to India in May 2011, which the Tribunal considered inconsistent with feared harm: at [65]-[66].

14. The Tribunal found that there was not a real chance that if the appellants returned to India they would suffer serious harm from Mr Kader, his family or other Muslims because the wife refused to marry Mr Kader against her will. The Tribunal did not consider that there was a real chance that they would suffer serious harm as a result of communal violence in the city from which they came. The Tribunal was therefore not satisfied that the appellants were refugees or entitled to complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth): at [70]-[72].

    THE APPEAL

15. The appellants advanced the following grounds of appeal to this Court from the decision of the primary judge (grounds appear as written):

    1.   The Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction by rejecting the claims of the Applicant and her spouse in relation to the fear of persecution on the grounds of social group they belong to , the religion, the race and the failure on the part of the government authorities to settle the dispute between two rival religious groups leading to mass murder and riots.

    2.   The Federal Magistrate Court failed to accept the Tribunal’s failure in rejecting the Applicant’s claims by using excessive authority, by ignoring the relevant facts of the claims and failed to remit the matter back to the First Respondent to reconsider its decision not to grant the protection for the Applicant.

    3.   The Federal Magistrates Court and the Tribunal failed to accept that claims on the basis that the Applicants’ problems with the Muslims were not published in the media and as such the claims could not have taken place.

    4.   The Federal Magistrate asserted the decision of the Tribunal and ignored the jurisdictional errors made by the Tribunal. The Federal Magistrate failed to accept the error made by the Tribunal in not accepting the Applicant’s detailed knowledge of the Muslim friend who is the perpetrator who threatened to abduct the First Applicant to marry her the second time and also threatened to kill the Second Applicant.

16. The appellants were assisted by an interpreter at the hearing and provided no written submissions.  The Minister’s representative provided written submissions.

17. The Minister’s primary submission was that these grounds were not raised in the Court below and it therefore could not be said that the primary judge had either failed to consider or accept these matters, or failed to find errors which are now differently alleged.    

18. The appellants relied upon the following grounds of review in their application to the Federal Circuit Court (grounds appear as written):

    1.   The Second Respondent made a jurisdictional error by failing to consider both the Applicants’ claims with regard to their fear of their life upon their return.

    2.   The Second Respondent failed to refer to any of the relevant news articles and information submitted by the Applicants and denied the applicant procedural fairness and thereby fell into jurisdictional error.

    3.   The Second Respondent fell into jurisdictional error by making a finding for which there was no evidence and by coming to a conclusion that was so illogical or irrational that no reasonable independent merits reviewer could have reached it.

    4.   The Second Respondent fell into jurisdictional error by failing to have regard to all relevant material.

19. The Minister further submitted that: (1) as the appellants provided no particulars of the grounds, it is difficult to respond to them meaningfully; and (2) to the extent that the grounds seek to cavil with the Tribunal’s factual findings no jurisdictional error is disclosed and the grounds constitute an attempt to engage the Court in impermissible merits review.  

    First ground of appeal

20. At the hearing, the appellants submitted that the Tribunal did not consider whether there was a problem between Hindus and Muslims.  The appellants did provide evidence of this conflict but after four years in Australia they were unable to provide evidence related directly to the appellants and Mr Kader.   They were not aware that they had to provide that sort of evidence to the Tribunal.

21. The representative of the Minister suggested that this ground may seek to re-agitate the first ground for review by the Federal Circuit Court: that the Tribunal had failed to consider one of the appellants’ claims.  

22. The appellants’ clearly articulated claim for protection was to fear harm from Mr Kader, his family and other Muslims occasioned by Mr Kader’s unrequited love for the wife. The Tribunal summarised the bases of this claim at [57] of the Tribunal record, having previously set out a detailed summary of the wife’s written statement which accompanied her visa application, the information provided at the interview with the Department and the evidence given at the Tribunal hearing. Although the husband did not make his own claim as a refugee in his visa application, the Tribunal accepted that the husband claimed to fear serious harm for the same reason as the wife: at [54].

23. The Tribunal did accept that there was a history of tensions between Hindus and Muslims in the appellants’ home region in India, including frequent violent incidents in their home city.  However, the Tribunal was not satisfied that those incidents were connected with the appellants personally or that there was anything in their personal circumstances which would lead them to be targeted personally beyond the fact that they belong to the majority Hindu community. The Tribunal was also not satisfied that there was anything before it which supported the wife’s assertion that violence is levelled at the children of well-to-do Hindus. The Tribunal therefore found that although country information did point to the existence of communal violence between Muslims and Hindus, it did not accept that there was more than a remote chance that the appellants would suffer serious harm in such violence: at [57]-[58] and [67]-[69].

24. It is clear that the Tribunal did consider the appellants claims both as they were articulated and more broadly arising from communal violence between Muslims and Hindus. At [43] and [45] of SZRMO, the primary judge correctly noted that: (1) the Tribunal is only required to consider the claims advanced by the appellants or claims that clearly arise from the material before it and it is for the appellants to make out their case and to provide sufficient information for the Tribunal to reach the requisite level of satisfaction, (2) the Tribunal clearly set out in its decision record the appellants’ claims, the evidence and material before it and its reasons for rejecting the claims, and (3) the Tribunal ultimately rejected the appellants’ claims because it found that they were not credible, which is the role of the Tribunal par excellence.  

25. I find no error in the reasoning of either the Tribunal or the primary judge. This ground must be rejected.

    Second ground of appeal

26. At the hearing, the appellants explained this ground as a complaint that the primary judge supported the Tribunal’s decision to reject the grant of the protection visas to which they were entitled.  Without particulars, this is a simple complaint about the result in the Tribunal and the Court below and must be rejected.

    Third ground of appeal

1. At the hearing, the appellants submitted that they provided to the Tribunal news articles which demonstrated many instances of communal violence, but the Tribunal erred by disbelieving their claims because they were not named in the articles.  They say that there were many incidents which did not receive coverage.  This is similar to ground two of the application to the primary judge.

2. The primary judge dealt with this issue, in my view correctly, at [63]-64] and [64]-[67] of SZRMO:

   [63]     The first finding was (at [61] at CB 184):

   “… Given these aspects of the persons said to be at the centre of communal rioting and terrorist incidents in a major city such as Ahmedabad over a number of years, it would be reasonable to expect that at least some form of media coverage would be devoted to them. Such, however, was not the case according to the Applicants…”

   [64]This finding was part of [61] (at CB 184) of the Tribunal’s decision record and was made in the context of the Tribunal finding that if a personal dispute had caused such rioting, then, in the circumstances, there would be some media coverage of the riots. However, the applicants submitted that this reasoning was illogical and irrational because the implication is that all terrorist incidents around the world should, reasonably be, published. The applicants submitted that the Tribunal rejected the claims of Kader’s terrorist involvement because the applicants were unable to give details of Kader’s terrorist connections, and what explanations were given, were ultimately rejected by the Tribunal.

   ...

   [66]In circumstances where “minds might differ” a finding cannot be said to be illogical or irrational (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] – [131] per Crennan and Bell JJ with whom Heydon J agreed at [78]. See also SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 (“SZOOR”) at [58] per McKerracher J with whom Reeves J agreed with at [112]).

   [67]I agree with the Minister that the findings made by the Tribunal were open to it on the material and evidence before it, and for the reasons it gave. The Tribunal’s reasons reveal a “logical or rational path of thought” and, also, were reasons made by a logical and rational mind (SZOOR). No jurisdictional error is revealed here. It appears in this ground, again, that the applicants are merely cavilling with the Tribunal’s findings (Wu Shan Liang).

   Fourth ground of the appeal

3. The appellants submitted that the Tribunal erred because it did not accept the wife’s claim that Mr Kader is a Muslim who wanted to marry her.  They submitted that it is easy, for instance by online research, to verify that Muslims do attack Hindu girls.  The wife fears for her life and that her husband will be beaten.  They are scared and need protection. 

4. This ground cavils with the Tribunal’s fact finding and ultimate decision.  At [65] of the decision record, the Tribunal did give the appellants the benefit of the doubt and accepted that a person named Mohammed Kader does exist and that he was a law student who became friendly with the wife and that he may have developed feelings which went beyond friendship for her and it can be inferred that the Tribunal also accepted that Mr Kader is a Muslim.  However, the Tribunal did not accept the appellants’ claims beyond this because they did not find the appellants credible.  These factual findings are matters for the Tribunal, and the decision record does not reveal that the Tribunal’s reasons are infected with jurisdictional error because of irrationality, illogicality or the failure to consider the evidence before it.  This ground must also be rejected.

   CONCLUSION

5. As none of the grounds of appeal have been made out, the appeal should be dismissed and the appellants should pay the costs of the first respondent as agreed, or failing agreement, as assessed.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:

Dated:       19 March 2014