SZLFS v Minister for Immigration and Citizenship [2009] FCA 75 (11 February 2009)

Last Updated: 13 February 2009

FEDERAL COURT OF AUSTRALIA

SZLFS v Minister for Immigration and Citizenship [2009] FCA 75

SZLFS and SZLFT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1656 of 2008

COLLIER J
11 FEBRUARY 2009
BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD 1656 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLFS First Appellant SZLFT Second Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	11 FEBRUARY 2009
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.
2. The appellant pay the first respondent’s costs, fixed in the sum of $3,200.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD 1656 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLFS First Appellant SZLFT Second Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COLLIER J
DATE:	11 FEBRUARY 2009
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal against the decision of Lloyd-Jones FM delivered on 3 October 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 10 July 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND

2. The appellants are citizens of India who arrived in Australia on 25 December 2005. On 23 March 2007 the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 11 April 2007. On 4 May 2007 the appellants applied to the Tribunal for a review of that decision.
3. The appellant husband claimed to have a well-founded fear of persecution from a development company called Nanda Promoter, because his family refused to sell their land to the company. He claimed that he was threatened over the phone and at his house by “anti-social persons” sent by the development company. He said that he reported the incidents to the police, however claimed that the police were informed by the Communist Party India (Marxist) (“CPM Party”) not to investigate any complaints from him. He stated that the day after he made the complaint to the police he was abducted and tortured by three men who threatened to kill him if he went to the police again. He said that he then sought help from the leader of the Trinamul Congress and together they visited the company to attempt to resolve the issue. He claimed that shortly after this the appellant wife was abducted and raped and warned not to go to the police or both she and her husband would be killed. The appellant wife became pregnant as a result of the rape and had a termination. The appellants feared that if they remained in India they would face further mistreatment and fled to Australia.

PROCEEDINGS BEFORE THE TRIBUNAL

4. The Tribunal noted that the appellants had not provided any supporting evidence for their claims of persecution. The Tribunal also noted that independent country information indicated that India is a democratic State in which its citizens in general have freedom of movement within the country and recourse to State protection authorities and the legal system. The Tribunal made no finding as to the extent and nature of any persecution suffered by the appellants at the hands of agents hired by the Nada Promoter Company as the Tribunal was not satisfied that any persecution suffered was for any Convention reason.

APPLICATION FOR JUDICIAL REVIEW BEFORE THE FEDERAL MAGISTRATES COURT

5. On 24 August 2007 the appellants filed an application for judicial review of the Tribunal’s decision. On 7 November 2007 the appellants filed an amended application and on 25 March 2008 they filed a document titled “Supplementary Grounds of Application” setting out two additional grounds. The appellants contended that the Tribunal: failed to comply with its obligations pursuant to s 424A Migration Act 1958 (Cth) (“the Act”); failed to consider the appellant husband’s evidence; did not take into account certain “integers” central to the appellants’ claims; questioned the appellants for two hours causing them to feel stressed and intimated; failed to carry out its review function and to exercise its jurisdiction; failed to properly consider whether the appellants would suffer serious harm pursuant to s 91R(2)(a) of the Act; applied the wrong test; incorrectly considered independent country information; acted illogically in making its conclusions; failed to find that the appellants satisfied the key elements of a refugee as defined by the Convention; failed to record its decision in accordance with s 430 of the Act; and failed to consider the chances of the appellants being persecuted should they return to India.
6. The Federal Magistrate found that the appellants’ contention in relation to a breach of s 424 of the Act was unfounded as the appellants were not invited to provide information under the section. His Honour was satisfied that there was no information which the Tribunal was required to put to the appellants under s 424A of the Act. In relation to the second ground, his Honour found that even if the Tribunal’s statement regarding the medical certificates was factually incorrect, factual errors do not amount to jurisdictional error. His Honour also found that as there was no convention nexus to the appellants’ claims, any error of this nature would be immaterial.
7. His Honour was satisfied that the Tribunal’s invitation in this regard was real and meaningful, and that the Tribunal did not ignore any integer of the appellants’ claims. Further, his Honour found no evidence that the appellants were stressed or intimidated at the Tribunal hearing, or that they were incapacitated and unable to participate in that hearing. In relation to the appellant’s fifth ground, his Honour found that no consideration of s 91R(2)(a) of the Act was required as the Tribunal did not accept that the appellants had a well-founded fear of persecution for a Convention reason and therefore it was not necessary to consider whether any such feared harm amounted to serious harm.
8. In relation to the sixth ground, his Honour was satisfied that the Tribunal had considered each of the appellants’ claims before concluding that there was no convention nexus.
9. In relation to the seventh argued ground, his Honour noted that the Tribunal is not obliged to refer to independent country information or to search out and obtain information in support of the appellants’ case. His Honour stated that the appellants were under a duty to make their own case.
10. In relation to the eighth ground, his Honour stated that the Tribunal’s decision was based on the view it took of the facts and, as the sole arbiter of the facts, its findings were open to it on the material before it and within its jurisdiction. His Honour further noted that the weight that the Tribunal affords certain evidence is a matter that is entirely within the providence of the Tribunal.
11. With respect to the ninth ground, his Honour found that the Tribunal plainly considered all of the appellants’ claims and evidence but found on the basis of the oral evidence that the claims had no convention nexus and that State protection was available in India. In relation to the alleged contravention of s 430 of the Act, his Honour stated that the Tribunal was not obliged to consider the nature of the persecution the appellants claimed to have suffered, as it found that any harm suffered was not Convention related.
12. Finally, his Honour noted that the appellants’ dispute was of a domestic nature and concerned ownership and access to a particular block of land. His Honour stated that although the appellants claimed that the company hired agents with links with the ruling CPM Party and that the CPM in turn used its influence to prevent police intervention, the Tribunal was not satisfied that any of the evidence established those links.
13. Having found no jurisdictional error, his Honour dismissed the application.

APPEAL TO THIS COURT

14. By Notice of Appeal filed on 21 October 2008, the appellants raised the following grounds of appeal against the decision of Lloyd-Jones FM:
    1. The Court below 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 appellant was a refugee within the meaning of the Act. In such circumstance the Tribunal erred in that:
       

Particular: it failed to properly apply the consideration that applicants for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicants claim are plausible.

15. The written submissions of the Minister included, in summary:
    • the Federal Magistrate had noted that the application before him appeared to be a modified form of a “template” frequently seen, complete with allegations having nothing to do with the appellant’s claim;
    • there was no error in the reasoning of his Honour; and
    • in relation to the ground of appeal before this Court – there is no principle requiring the Tribunal to give the appellant the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the appellant’s claims are plausible, and in any event the Tribunal did not “entertain” such possibility. This ground merely seeks merits review and was correctly rejected by his Honour.
16. The appellants made no written submissions, however appeared in Court and made oral submissions referable to the factual aspects of their claim.

CONSIDERATION

17. The facts as claimed by the appellants demonstrate an appalling experience by them in India. However the jurisdiction of this Court is limited. The only basis upon which an appeal lies from a privative clause decision within the meaning of s 474 of the Act is on the basis of jurisdictional error of the Tribunal: S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. The Court cannot engage in review of the merits of the appellant’s claims: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].
18. The Findings and Reasons of the Tribunal are relatively brief. They are as follows:

The applicants have claimed that they have been threatened and persecuted – including the abduction and torture of the applicant and the rape of his wife (the second named applicant) – by agents hired by a company, “Nanda Promoter”, which had sought unsuccessfully to buy land from the applicant and his family. The applicants claim that the company and its hired agents have strong links with the ruling CPM (or CPI(M)) Party and that the CPM Party in turn has used its influence over the local police to prevent any of the parties from being prosecuted or otherwise held accountable for the persecution of the applicants.

The applicants have provided no supporting evidence for their claims of persecution (such as medical reports relating to the claimed torture of the applicant and the rape of his wife and the termination of the resulting pregnancy) or for the claimed links between the company, its hired agents, the CPM Party and the police.

Country information (including the background information cited above) indicates that India is a democratic state in which its citizens in general have freedom of movement within the country and recourse to state protection authorities and the legal system. The applicant by his own admission is well-educated, comes from a family with significant land holdings, and is an active member, and has the support, of the Trinamul Congress Party. As also noted above, DFAT has advised that if supporters of registered parties in India are subject to political persecution from rival political parties or other agents, they generally have recourse through the Indian legal system.

While the Tribunal makes no finding on the extent and nature of any persecution suffered by the applicants at the hands of agents hired by the Nanda Promoter company, the Tribunal is not satisfied on the evidence that any persecution suffered was for any of the Convention reasons, including the applicants’ political opinion. The Tribunal also considers that the applicants have the ability and resources to avail themselves of the protection of relevant authorities and the legal system in India.

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicants are persons to whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) for a protection visa. Nor can they satisfy the alternative criterion in s 36(2)(b) and therefore cannot be granted protection visas.

19. Article 1A(2) of the Refugees Convention, as incorporated into Australian law through the operation of s 36(2)(a) Migration Act 1958 (Cth) defines a refugee to whom the Convention applies as a person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

20. Even accepting the claims of the appellants of persecution by Nanda Promoter, and the claimed links between Nanda Promoter, the CPM Party and the police, according to the Tribunal the appellants did not demonstrate any Convention reason as a basis of their claims for refugee status. The law is clear that significant detriment or disadvantage suffered by a person from failure of police authorities to enforce the criminal law against those who break those laws may constitute “persecution” within the meaning of the Convention (Minister for Immigration v Khawar [2002] HCA 14; (2002) 210 CLR 1), but the persecution must be for reasons of race, religion, nationality, membership of a particular social group or political opinion. As noted by the Tribunal, it was not satisfied on the evidence that any persecution suffered by the appellants was for any of those Convention reasons, including the appellants’ political opinion. The reason for the persecution, as observed by the Tribunal in its reasons, was the private dispute between the appellant and the company Nanda Promoter.
21. The reasoning of the Tribunal in this case is, with respect, thin. However I do not find that it is thin to the point of capriciousness or arbitrariness: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [145]. The Tribunal’s findings of fact, following consideration of the material before it, were available on the evidence. Weight given by the Tribunal to evidence before it, both oral and documentary, is a matter for the Tribunal as an incident of its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.
22. Finally, while a liberal attitude on the part of the decision-maker is called for because a claimant for refugee status may have difficulties proving their allegations, this should not lead to an uncritical acceptance of any and all allegations made by such claimants (cf Beaumont J in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451). The appellants’ reference to “benefit of the doubt” appears to relate to the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1979 re-edited 1992) (http://www.unhcr.org.au/pdfs/HandbookonProceduresandCriteriaforDeterminingRefugeeStatus.pdf) published by the Office of the United Nations High Commissioner for Refugees (“UNHCR”), at paras [203]-[204]. In this Handbook the UNHCR recognises the difficulties an applicant for refugee status may experience in proving his or her case, and continues:

[204] The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.

23. I accept Mr Reilly’s submission on behalf of the Minister that there is no principle requiring the Tribunal to give the “benefit of the doubt” to the appellants or indeed any other applicant under the Migration Act 1958 (Cth) counter to the Tribunal’s own findings of fact. To that extent the sole ground of appeal in the appellants’ notice of appeal cannot be substantiated.
24. In the circumstances of this case I can identify no jurisdictional error in the decision of the Tribunal. Nor can I identify an appellable error in the decision of his Honour, who delivered a careful and detailed judgment considering all grounds of review before him.
25. The appeal should be dismissed with costs.
    

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated: 11 February 2009

Counsel for the Appellant:	The Appellants appeared in person
Counsel for the First and Second Respondents:	Mr T Reilly
Solicitor for the First and Second Respondents:	Sparke Helmore

Date of Hearing:	10 February 2009
Date of Judgment:	11 February 2009