SZDWG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1339 (16 September 2005)

Last Updated: 13 October 2005

FEDERAL COURT OF AUSTRALIA

SZDWG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1339

SZDWG and SZDWH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL
NSD 1179 of 2005


WILCOX J
16 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1179 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDWG SZDWH APPELLANTS
AND: AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	16 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the costs of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1179 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDWG SZDWH APPELLANTS
AND: AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	WILCOX J
DATE:	16 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1 This is an appeal from a decision of Federal Magistrate Lloyd-Jones given on 29 June 2005. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice directed that the appeal be heard by a single judge.

2 The learned Magistrate dismissed an application pursuant to s 39B of the Judiciary Act 1903 (Cth) that sought to challenge a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 29 April 2004. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to grant a protection visa to the appellants.

3 After the institution of the appeal to this Court, the Tribunal was added as a second respondent. However, the Tribunal indicated through counsel that it did not wish to participate in the hearing and submitted to the jurisdiction of the Court save as to costs.

4 In support of the appeal, Mr T. Silva, solicitor, has argued three points. I think that he has said everything that can be said about them but I find no substance in any of the points.

5 The first matter that was raised was a claim that the Tribunal member did not in practice apply a statement that he made early in his reasons for decision that a well-founded fear of persecution may exist even where the possibility of persecution is less than 50 percent. The basis of this complaint was said to be that the Tribunal required the appellants to provide corroboration of their evidence.

6 I do not think this is a fair description of the Tribunal's position. The Tribunal member, in his reasons for decision, set out at some length the claims made by the appellants. The appellants had claimed a fear of persecution on the basis of imputed political opinion. They did not claim to have been members of any political party or to have had any political or community profile. However, they claimed some members of the VHP, a radical Hindu political party, attended the funeral of the first appellant's uncle that was held in the appellants’ house. The argument was that this would cause them to be associated with a political opinion favourable to the Hindu cause, they being Muslims who had converted from the Hindu religion. On the basis of this claim, the appellants set out various events which, they said, had occurred, involving communal violence and over a number of years. At pages 15 to 16 of his reasons for decision, the Tribunal member said this:

‘Despite all the events they describe have happened to them in considerable detail since 1992, the Applicants provide no evidence whatsoever to support their claims such as copies of any police reports, newspaper accounts of events in which they claim they were involved, or even letters from relatives and friends. In their statement of 24 September 2003 they explain that the hospital refused to provide copies of the first Applicant’s hospital records and they claim the police and hospitals try to "hide things to suit them" and the police are corrupt. However, given the claimed extent of the attacks on not only them and their property over so many years but also on neighbours, relatives and friends (including a number of claimed murders),and the availability of other impartial sources such as their own doctors, the media, or their neighbours, the Tribunal does not accept these claims. Accordingly, while accepting that the Applicants have from time to time been subjected to some random communal discrimination and possible violence from 1992, and that communal violence does from time to time erupt in India as occurred following the killing of a number of Hindus on the Sabarmati Express by Muslims (on which the first Applicant claims that his wife’s sister-in-law and mother were travelling and they were lucky to escape alive) and other recent events surrounding the question of the rebuilding of the Babri Mosque or a Hindi temple in Ayodhya, the Tribunal also accepts the independent country information that the Indian Government is both effectively addressing this issue and taking preventative action to avoid any further flashpoints and community violence and provide adequate state protection (for example, Title: "Indian troops patrol ahead of Muslim festival" dated 24 March 2002 (CX63308) and title: "Indian security forces brace for sectarian showdown in Ayodhya" dated 11 March 2002 (CX63315)), and cracking down on any outbreaks that do occur including when this violence whether instigated by Hindus or Muslims ...’

7 It will be noted that the Tribunal member formed an opinion that corroborative evidence would be likely to have been available if the factual statements made by the appellants had a good basis. He noted that no corroborative material had been provided. I agree with Mr Silva that it would have been a jurisdictional error if the Tribunal member had held, as a matter of law, that absent corroborative evidence, it was not open to him to accept the appellants’ account of relevant events. However, the Tribunal member did not do this. He simply observed that, in considering whether or not to accept the appellants’ case, it was noteworthy that there was no corroboration, despite the fact that one would have expected corroborative material to be available.

8 I see nothing exceptional in this. It is an approach taken every day by fact finders, whether in court or otherwise. Whether or not the absence of corroborating evidence should be regarded as significant in reaching a particular factual determination must depend upon the nature of the issue under consideration and the likely availability of corroborating material. In some cases, it will be apparent that it is unlikely that corroboration is available; in which case one would expect a fact finder to ignore the lack of corroborating material. At the other extreme, it may be obvious that corroboration would be readily available. In such a case, the absence of corroboration may be regarded as a significant matter in determining whether or not to accept the evidence.

9 I think that, in the present case, the Tribunal member was only expressing the opinion that he would have expected corroborative material to be able to be provided and there was none. This was not his sole reason for disbelieving the appellants. It was one of several reasons.

10 The second matter that was argued was that the Tribunal member was not entitled to reject the claim of imputed political opinion, because of the funeral, without going into the question of what caused the people to attend the funeral. The section of the Tribunal's reasons where this matter is referred to is as follows:

‘The first Applicant replied that he was not working for any political party but his is religious (working for the temple in the United Kingdom) and they [the Muslims] saw VHP members at his place and so they believed that he is working for them. Notwithstanding these claims, and as was put to the Applicants at the hearing, the Tribunal does no [sic] accept that because some members of the VHP were on one occasion (his uncle’s funeral) at his house that they would be regarded as a political figure or even supporters of the VHP or indeed any other party. Nor do they claim that ever stood for parliament or public office. Indeed, the Applicants do not claim that they have had any even peripheral political involvement of any sort (such as having attended political rallies, supported a particular political party or candidate, or even passed out political leaflets or other information) and accordingly the Tribunal is satisfied that there is no reason for anyone in the local community or elsewhere to believe they held a political opinion (actual or imputed). In short, as was put to the Applicants at the hearing, the Tribunal does not accept that they had any political profile whatsoever and does not accept that there is even a remote chance that they would have a political opinion imputed to them or be regarded as VHP supporters, let alone party members or political activists, based purely on some members of the VHP attending funeral arrangements at their home, and is not satisfied that on this basis they would be subjected to serious harm amounting to persecution. The Tribunal is also satisfied that the Applicants have embellished their claims with the objective of enhancing their claims for a protection visa, and finds that this also goes to the matter of their credibility.’ (emphasis added)

11 I particularly note the emphasised words in this passage. The inference that might be drawn from the fact that a person hosts a funeral must depend upon the circumstances. The first appellant claimed that the uncle was the victim of communal violence inflicted upon him by Muslims. It is no doubt a reasonable inference that, if this was so, members of the VHP may have attended the funeral in order to show their solidarity with his relatives and their detestation of what had happened to him. If the position was that the appellants had hosted a funeral of a person with whom they had had no familial relationship who was killed on an occasion of communal violence, then perhaps an inference about religion or political opinion might be drawn. However, in the present case, the deceased was a near relative of the first appellant.

12 These are considerations of fact. I think it is incorrect to say that the Tribunal was required to consider a host of subsidiary questions in deciding what inference was to be drawn about this matter. It must be remembered that it was the appellants’ case that the political opinion would be imputed because of the presence of VHP members at the funeral.

13 The matters that Mr Silva suggested should have been considered by the Tribunal were as follows:

‘(a) In general, funeral ceremony in India attract a large number of people

(b) Because Hindus have been killed by Muslims there would have been intense racial feelings that would have attracted a large crowd to the funeral

(c) Did the VHP politicians make speeches at the funeral and if they did were they of inflammatory nature

(d) It was in a predominantly Muslim area

(e) The Muslim’s intense hatred towards VHP who are perceived as strongly anti-Muslim

(f) How far did the funeral procession go and were there any chantings or demonstrations that took place with the funeral.’

14 No doubt the matters that Mr Silva has mentioned are correct, but I think it was entirely a matter for the Tribunal to decide what inference should be drawn from the fact that VHP members attended the funeral.

15 The third matter is that it is complained that the Tribunal failed to address the question of State protection. I think it is apparent that this is incorrect, as appears from the final sentence of the passage that I have quoted in para 6 above. There was country material supporting the conclusion that had been reached. No doubt some people would have a different view about the effect of that country material and the degree to which the Indian Government has succeeded in preventing communal violence, but these were questions of fact. The Tribunal did address the issue and reached a conclusion which was based on the evidence.

16 There is no merit in any of the grounds of appeal. The appeal should be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 12 October 2005

Solicitor for the Appellants:	Mr T Silva of Silva Solicitors
Counsel for the Respondent:	Mr J A C Potts
Solicitor for the Respondents:	Clayton Utz
Date of Hearing:	16 September 2005
Date of Judgment:	16 September 2005