SZSCD v Minister for Immigration

[2013] FCCA 1196

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSCD & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1196

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal failed to make an obvious inquiry about a critical fact – whether Tribunal failed to take into account a relevant consideration – where applicant received legal advice and assistance in preparation of application – whether applicant denied natural justice for failure to provide legal advice – whether Tribunal correctly dealt with applicant’s complementary protection claim.

Legislation:  

Migration Act 1958 (Cth), ss.36(2)(aa) , 91R(1)(b)

SZHVL v Minister for Immigration & Anor [2008] FCA 356
Minister for Immigration & Anorv SZIAI (2009) 83 ALJR 1123
SZHTI v Minister for Immigration & Anor [2006] FCA 702

First Applicant: SZSCD

Second Applicant: SZSCE

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2452 of 2012

Judgment of: Judge Raphael

Hearing date: 7 August 2013

Date of Last Submission: 7 August 2013

Delivered at: Sydney

Delivered on: 7 August 2013

REPRESENTATION

For the Applicant: In person

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondents costs assessed in the sum of $3,100.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2452 of 2012

SZSCD

First Applicant

SZSCE

Second Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants, who are husband and wife, applied for protection (Class XA) visas upon their arrival in this country from New Zealand on 30 November 2010.  Only the wife claimed to be a person to whom Australia owed protection obligations, the husband completing a form which indicated that he had no independent grounds for seeking the visa.  On 24 November 2011 a delegate of the Minister refused to grant the applicants protection visas and on 15 December 2011 they applied for review of that decision from the Refugee Review Tribunal.  The Tribunal interviewed both applicants at a hearing which took place on 13 June 2012.  On 21 September 2012 the Tribunal determined to affirm the decision not to grant the applicants a protection visa. 

2. The applicants are citizens of India and their protection claims were assessed against that country.  The grounds upon which the female applicant claimed to be a person to whom Australia owed protection obligations were the Convention ones of religion and membership of a particular social group.  It was the applicant’s claim that although she had been brought up as a Roman Catholic in India she had converted to Protestantism and had been active in a Protestant organisation of her home state of Kerala.  She claimed that as a result of this adherence she had been attacked both by Catholics and by Hindus.  She claimed that on 23 October 2010, while she and her husband were preparing for bed, there was a knock on the door and 30 to 40 men with fire torches and wooden sticks were outside their house.  They went outside their house and were attacked by the group which then set fire to the house. The windows and doors were burned.  The applicants told that this action was carried out because they had been blamed for converting two Hindu families to Christianity.  The female applicant claimed that her local pastor had told her that it was not safe for her to remain in India and the church paid for her and her husband to go on a trip, first to New Zealand, and then to Australia. 

3. The applicant also claimed that she would suffer persecution should she return to India in the reasonably foreseeable future because she was a member of the Mukkuva caste.  At [95 – 97] the Tribunal extracts certain country information concerning members of that caste concluding at [97] [CB 175]:

   “[97]No reports could be located of attacks on the Mukkuva caste community in Trivandrum or Thiruvananthapuram.”

4. At the hearing the Tribunal questioned the applicant upon her claims and put to her matters that concerned it.  One of those concerns was the fact that the applicant had not applied for asylum in New Zealand when she first went there but waited until she came to Australia.  Another concern was of lack of any documentary evidence that would support any of the assertions made by her.  In particular, the assertions made by her of a conversion from Catholicism to Protestantism.  The applicant had told the Tribunal that she was attempting to obtain documentary evidence but it had not come. 

5. In its findings and reasons the Tribunal opined:

   “[107]Several aspects of the applicant’s claims were, in the Tribunal’s opinion, inherently implausible, including

   a.That her baptism and that of a number of other families would have been advertised by a church in a poster in a public place;

   b.That some of the Hindu attackers at her house, after her baptism, would reappear to threaten her after she had travelled some 8 to 9 hours on a bus to another part of the State.

   c.That despite the attack on her house and the hostility of people in her village to herself and her family, members of her family including her children remain living in her house in that village;  and

   d.That the church to which she converted and for which she claims she undertook many tasks and which paid for her and her husband’s airfares, would refuse to assist her by providing a duplicate certificate of baptism in order for her to evidence her claim that she had converted to that church.” [CB 177]

6. The Tribunal was also concerned about the failure of the applicant to worship in any Protestant Church in Australia since her arrival.  The Tribunal came to the conclusion that because of these failures it could not be satisfied that she was a person to whom Australia owed protection obligations because it could not accept that she was attacked by Catholics or Hindu fundamentalists by reason of her religion or that she was subject to discrimination by Catholics or Hindus by reason of her religion or that she had suffered discrimination amounting to serious harm by reason of her caste.

   “[113]The Tribunal is satisfied that the applicant has fabricated her claims to protection.”  [CB 178]

7. At [116] [CB 178] the Tribunal deals with the complementary protection obligations under s.36(2)(aa) of the Migration Act 1958 (Cth)[1] which it explains, albeit in boilerplate form, at [16-18] in [CB 156].  In regard to this aspect of the Tribunal’s duty it says:

   “[116]Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criteria and in s.36(2)(aa). For all the reasons set out above, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under 36(2)(aa).”

   [1] “Act”

8. On 26 October 2012 the applicants filed an application for review of that decision with this court.  There were three grounds of application.  The first ground was:

   “1.     RRT made the decision without any inquiry.”

9. It would appear from what the applicant told me today in court that the inquiries she refers to are inquiries that she expected the Tribunal to make in India about her claim.  That there is no general duty to inquire is now well established by cases such as SZHVL v Minister for Immigration & Anor [2008] FCA 356 and the only gloss upon this is that described by the High Court in Minister for Immigration & Anorv SZIAI (2009) 83 ALJR 1123 where that court confirmed that although there was no general duty to inquire it might 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. In this case the applicant has expected much more than that. She has expected the Tribunal to make inquiries of its own within her country about facts that were very much unproven. This ground cannot succeed.

10. The second ground of application was:

    “2.    Failure to take into account relevant consideration.” 

11. Unfortunately the applicant did not expand upon this ground either in any Amended Application which she had been given leave to file or before me today at court.  The court has long adopted an approach that it is not for it to guess what an applicant might mean by a statement such as this.  It behoves the applicant to particularise her claim and in the absence of particulars the claim cannot be given any weight.

12. The third ground was:

    “3.    No legal assistance being provided.”

13. This is a matter that the applicant raised with me at the hearing.  In fact the applicant was granted legal assistance under the Minister’s scheme.  Documents in the court file reveal that she was provided with written advice by a solicitor, although the content of that advice is not known.  The applicant considered that the legal advice she conceded that she had received was not of any benefit to her because, as I understand it, it was not positive.  The applicant fails to understand that legal advice can be beneficial even if it advises the recipient that her claims are going to be difficult to establish.  It is beneficial because it would save the applicant, the respondent and the court time and money.

14. The applicant also claimed that she had had no assistance in the preparation of her case but in fact this is also not correct.  It is clear from the Court Book [CB 138] that the RACS was helping her to prepare statements and would guide her for her application.  She also states at [CB 139] that the Red Cross were helping her.

15. In SZHTI v Minister for Immigration & Anor [2006] FCA 702 the Federal Court, Gyles J, on appeal from the Federal Magistrates Court, said:

    “[3]      The first paragraph of the affidavit in support of the application is:

    ‘I was not given access to free legal advice which is commonly available to applicants through the New South Wales Legal Advice Scheme.  I was denied natural justice at the Federal Magistrate’s Court.’

    [4]That contention was put to the learned Federal Magistrate and, in my opinion, there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.”

    In this case the applicant was granted free legal advice and so his Honour’s comments are even more apt.

16. The only matter upon which this court has some concern is the way in which the Tribunal dealt with the complementary protection criteria.  Claims for complementary protection are to be considered under a different criteria to those of what I will describe as “refugee protection” in that in the latter the persecution that the applicant fears must involve “serious harm” pursuant to the provisions of s.91R(1)(b) of the Act.  Under the complementary protection provisions the harm is described as “significant.”  In this court’s view this means that a properly constructed decision will give consideration to the facts on both these criteria and explain its reasons for not considering that an applicant might fall within either.

17. If that was done in this case it was by reference rather than by clear words.  Although the court can see the reason why the Tribunal concluded that Australia had no complementary protection obligations towards this applicant was that her entire story had been fabricated and she had not suffered any discrimination or persecution, that would not necessarily be so clear to an applicant who speaks no English and may have limited education.  But this does not constitute jurisdictional error.

18. It follows from what has been said above that the court does not believe that it is in a position to provide the applicant with the review she seeks.  The application is dismissed.  I order that the applicant must pay the first respondent’s costs which I assess in the sum of $3,100.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  20 August 2013