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SZLOV & Anor v Minister for Immigration & Anor [2009] FMCA 17 (27 January 2009)

Last Updated: 3 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLOV & ANOR v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizens of India claiming fear of persecution on the grounds of imputed religious and political beliefs – credibility issues – relocation – no jurisdictional error.


Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634; [2007] HCA 40
SZFDV v Minister for Immigration and Citizenship [2007] HCA 41
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361

First Applicant:
SZLOV

Second Applicant:
SZLOW

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 2240 of 2008

Judgment of:
Scarlett FM

Hearing date:
6 November 2008

Date of Last Submission:
6 November 2008

Delivered at:
Sydney

Delivered on:
27 January 2009

REPRESENTATION

Applicants:
Appeared in person

Solicitors for the Applicant:
Not legally represented

Counsel for the First Respondent:
Ms Francois

Solicitors for the Respondents:
Clayton Utz

ORDERS

(1) The application is dismissed.
(2) The applicants are to pay the first respondent’s costs fixed in the sum of $4770.00.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2240 of 2008

SZLOV

First Applicant


SZLOW

Second Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent


REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Application

  1. The applicants, who are citizens of India, ask the Court to review a decision of the Refugee Review Tribunal made on 12th August 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant Protection (Class XA) visas to the applicants.
  2. The applicants ask the Court to remit their matter to the Refugee Review Tribunal for determination according to law. They rely on these grounds:
  3. The first respondent, the Minister for Immigration and Citizenship, filed a response on 4th September 2008 opposing the orders sought because the Minister does not admit that there is any jurisdictional error in the Tribunal decision.

Background

  1. The applicants, who are a wife and husband from Kerala in India, arrived in Australia on 11th May 2007. They applied for protection visas on 14th May 2007. The wife is the first applicant. She claimed in a statement submitted with her application to have suffered persecution from Muslim fanatics who had support from the Communist Party in Kerala because of her work assisting poor Hindus who had been persecuted by the Muslims and the CPI (Communist Part of India). Her husband, who is the second applicant, is a Part D applicant. His claim for protection arises from his membership of the family unit of his wife, who is a Part C applicant.
  2. The first applicant’s claim was set out in a four page statement submitted with the applications for protection visas. In that statement, she claimed that in Kerala the Rashtriya Swayamsevak Sangh (RSS) and the Hindu BJP party were involved in promoting Hinduism in Kerala while the Muslims with the help of the Communist party were trying to colonise the Hindu coastal areas into Muslim areas and convert the Hindus to follow the Muslim faith. She claimed that atrocities were committed against poor Hindu families.
  3. The first applicant claimed that as a result of her activities she was stoned and chased away by Muslims. She claimed to have been assaulted and interrogated by the Muslim authorities and branded as a member of the RSS. After the first applicant married her husband, he became involved in politics and assisted her at the Hindu temple.
  4. The first applicant claimed that she was accused of working for the RSS, even though she had no involvement with them, and she and her husband were assaulted and threatened. She claimed to have been detained for three months but her husband secured her release with the assistance of BJP politicians.
  5. The second applicant fled to Tamil Nadu because he was threatened with abduction. The applicants obtained visas to leave India but before they could do so, the first applicant was arrested by the authorities in December 2006. She claimed:
  6. The first applicant summarised her claim by saying that she feared for her safety at the hands of the government authorities. She stated that:
  7. A delegate of the Minister for Immigration and Citizenship refused the parties’ applications for protection visas on 1st June 2007. The delegate accepted that the first applicant was actively of the Hindu faith and involved in the Hindu temples in Kerala. The delegate also accepted that sporadic religious and communal violence between Muslim extremists and Hindus in Kerala may have caused some Hindus to hold a subjective fear of harm, but found that this discrimination and harassment suffered by Hindus was mainly at the hands of non-state agents and that the State and Federal governments were able and willing to provide adequate protection.
  8. The delegate found that there was no state-sponsored persecution of Hindus in India. Hindus comprise 80.5% of the population of India. The delegate found that the applicants’ claims that Hindus were restricted from practising their religion and treated like outcasts was generally not well-founded in relation to the country as a whole:
  9. The delegate relied on independent country information to find that in Kerala and across India political freedom and freedom of political affiliation were allowed and enforced. Accordingly, the delegate found that the first applicant did not have a well founded fear of harm in Kerala or in India on the basis of her imputed political affiliation with the BJP or her imputed association with the RSS.
  10. The delegate found that there were “credibility concerns” about the first applicant’s subjective fear of persecution in Kerala. Whilst the delegate found there was no objective basis for the harm that the first applicant claimed to fear in Kerala, the delegate also found that the first applicant could reasonably relocate to another part of India.
  11. In summary, the delegate found:
  12. Accordingly, the delegate refused to grant protection visas to the applicants.

Application for Review by the Refugee Review Tribunal

  1. After their applications for protection visas were refused, the applicants applied to the Refugee Review Tribunal on 26th June 2007 for review of the delegate’s decision. The Tribunal wrote to the applicants on
    6th July 2007 and invited them to attend a hearing which was to take place on 13th September 2007.
  2. The applicants attended the hearing on 13th September and gave evidence. The Tribunal Hearing Record shows that they both took an oath on the Bible.[5]

The Refugee Review Tribunal Decision

  1. The Tribunal handed down its decision on 4th October 2007, affirming the delegate’s decisions not to grant the applicants protection visas.

Application for Judicial Review

  1. The applicants commenced proceedings in this Court for judicial review of the Tribunal’s decision. On 30th January 2008 Driver FM made orders by consent, quashing the Tribunal decision and remitting the matter to the Tribunal to be redetermined according to law.

Further Proceedings before the Refugee Review Tribunal

  1. The Tribunal wrote to the applicants on 8th April 2008, inviting them to attend a hearing to take place on 19th May 2008.
  2. On 11th April 2008 the applicants appointed Siva Logan, solicitor and migration agent, to act as their representative. On 30th April 2008, the Tribunal received a letter from the applicants’ representative, putting additional information to the Tribunal.
  3. The applicants’ representative claimed that, even after the applicants had fled from Kerala, threats continued to be made to their families. The representative’s letter claimed that the first applicant’s brother and the second applicant’s mother were attacked by a Muslim mob on their way home from the Hindu temple on 26th December 2007. As a result of the beating she sustained, the second applicant’s mother was admitted to hospital but died from loss of blood.
  4. The applicants’ representative claimed in the letter that the first applicant’s brother attempted to complain to the police about the death of the second applicant’s mother but was sent away. The letter, which appears to have been written by the first applicant, then went on to say:
  5. The representative’s letter stated that the applicants feared for their safety on their return to Kerala or India. The letter then made a claim that the applicants had converted to Christianity:
  6. The letter also stated that copies of the death certificates of the first applicant’s mother and brother were attached. A copy of the death certificate of P. Retnamma Pilla, the second applicant’s mother, was included.[8]
  7. The applicants attended the hearing of the Tribunal on 19th May 2008. Both applicants gave evidence with the assistance of an interpreter in the Malayalam language.
  8. After the hearing, on 21st May 2008, the Tribunal wrote to the applicants, inviting them to comment on or respond to information in writing. The letter was written in an effort to comply with the requirements of s 424A of the Migration Act and informed the applicants that the Tribunal considered the information would, subject to any comments they made, be the reason, or part of the reason, for affirming the decision under review. The letter invited the applicants to provide written comments by 4th June 2008. There were 8 separate items of information upon which the Tribunal sought comments, six of which related to inconsistencies in the parties’ evidence and the other two were said by the Tribunal to be relevant to the question of whether the applicants’ fear was well founded.
  9. On the subject of the first applicant’s claim about the death of her brother, the Tribunal’s letter said:
  10. The Tribunal also sought comments about the applicants’ claim that they had converted to Christianity:
  11. On 3rd June 2008 the Tribunal received the applicants’ written comments, erroneously dated “3 May 2008”. As to the question of the brother’s death certificate, the applicants stated:
  12. The applicants also commented about the information relating to their claim to have converted to Christianity:
  13. The applicants provided a number of articles taken from the Internet relating to violence by or against Muslims in Kerala.
  14. The Tribunal re-sent the s 424A letter to the applicants on 17th June 2008, giving them until 10th July 2008 to provide written comments. The reason for this was given as a technical problem relating to the letter of 21st May, which did not give the applicants the correct prescribed period for their comments or response. The letter told the applicants that they could continue to rely on their written response received by the Tribunal on 3rd June 2008. The applicants did not provide any further written comments.

The Refugee Review Tribunal decision

  1. The Tribunal signed its decision on 22nd June 2008 and handed the decision down on 12th August. The Tribunal affirmed the decision not to grant the applicants Protection (Class XA) visas.
  2. In its Decision Record, the Tribunal set out, under the heading “claims and Evidence”, the following material:

The Tribunal’s findings and reasons

  1. The Tribunal, in its findings and reasons, set out what it considered to be the applicants’ claims about their risk of harm in India:
  2. The Tribunal considered the applicant’s claims, noting that the first applicant claimed as a Part C applicant, i.e. one who has her own claims to refugee status, and the second applicant claimed as a Part D applicant, one whose fears arose as the spouse of the first applicant. The Tribunal stated that it would consider the first applicant’s claims and those made by the second applicant as the spouse of the first applicant.
  3. The Tribunal went on to say:
  4. The Tribunal found that the applicants were not credible witnesses. It set out its reasons for this finding:
  5. The Tribunal then examined in detail the inconsistencies to which it had referred and reiterated its view that the applicants “were not witnesses of credit”.[18]
  6. The Tribunal then proceeded to examine the proposition that, if the applicants had a genuine fear of persecution within the State of Kerala, they could safely relocate to another part of India. The Tribunal set out its understanding of the law relating to relocation, referring to the judgment of Black CJ in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs[19]:
  7. The Tribunal considered the applicants’ language skills and the extent of the danger that the applicants claimed in Kerala and within India generally. The Tribunal rejected the first applicant’s claim that she could not relocate to another part of India because she only speaks Malayalam, noting that “she has re-located to Australia a country in which generally only English is spoken.”[21] The Tribunal noted that the first applicant is working, her husband can speak several languages, and the parties have looked after themselves since their arrival in Australia in 2007.
  8. The Tribunal also considered independent country information, which it quoted, and relied on that information to arrive at the conclusion that the applicants would not be in danger all over India “from Muslim criminal elements, terrorists, The Muslim ISS, NBF, NDP, ISI, BBP, BBF, PDP, PDf, Aluma, local government, tourism developers, communist party and the police.[22]
  9. The Tribunal found that the first applicant and her husband could relocate to another part of India and that it would not be unreasonable or impracticable for the applicant to relocate to another part of India where Malayalam is spoken.
  10. The Tribunal was not satisfied that there was any risk to the first applicant if she were returned to India and therefore was not satisfied that she had a well-founded fear of persecution for Convention purposes.
  11. The Tribunal concluded that (in summary):
  12. The Tribunal affirmed the decisions not to grant the applicants Protection (Class XA) visas.

Application for judicial review

  1. The applicants filed their application and affidavit in support on 29th August 2008. They filed a written outline of submissions on 3rd November 2008. Both applicants attended court at the final hearing on 6th November 2008 and the second applicant addressed the Court on their behalf.
  2. The applicants rely on two grounds:

The applicants’ submissions

  1. The second applicant complained that the Refugee Review Tribunal did not believe the applicants’ evidence and did not take into consideration the fact that his mother and his wife’s brother had been murdered. He also took issue with the Tribunal’s finding that the parties could relocate to somewhere in India other than Kerala.
  2. He also sought to explain why it was he told the Tribunal that he and his wife were Hindus but had previously given evidence that they had attended a Christian church. He said that, as a Hindu, he believes that there is only one God and he can therefore go to any church.
  3. The second applicant reiterated the applicants’ claims that they would be killed by Muslims if they returned to India.
  4. The applicants’ written submission reiterated the applicants’ factual claims of persecution in India, including the death of the first applicant’s brother and the second applicant’s mother.
  5. The submission claimed that the Tribunal had made jurisdictional error in the following ways:

The first respondents’ submissions

  1. Counsel for the Minister, Ms Francois, submitted that the Tribunal did not accept the applicants’ claims, “finding that they were not credible witnesses due to changes, inconsistencies and implausibilities in their evidence...The Tribunal also made an alternative finding that the applicants could reasonably be expected to relocate within India.”[24]
  2. Ms Francois submitted that there is no error in the Tribunal’s decision. The applicants were seeking impermissible merits review of the Tribunal’s adverse credit findings, but credibility is a factual matter for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[25] ).
  3. Counsel for the Minister submitted that the applicants’ written submissions, which were filed after the first respondent’s submissions, raised additional grounds of review. She submitted that the Tribunal did deal with the issue of the first applicant’s father’s political affiliations at paragraph 85 of its decision[26] and it also dealt with the inconsistency of the applicants’ evidence at paragraphs 53 and 54.[27]
  4. Similarly, Ms Francois submitted that there was no error in the way the Tribunal assessed the applicants’ evidence about how the first applicant was able to be released from detention. There is no error in the Tribunal having observed inconsistencies in the evidence.
  5. Again, it was submitted that the Tribunal considered the applicants’ evidence about the second applicant’s mother but it did not accept that she had been murdered. Whilst it was claimed that the Tribunal took an irrelevant consideration into account, the applicants had not identified what the irrelevant consideration was.
  6. Further, whilst the applicants had claimed that the Tribunal had acted in bad faith, Ms Francois submitted that there was no evidence of either actual or apprehended bias.
  7. Finally, counsel for the Minister submitted that no error on the part of the Tribunal was shown in the applicants’ claim that the Tribunal should have questioned the first applicant to clarify the Tribunal’s doubts about the evidence.
  8. In reply, the second applicant told the Court that the Tribunal had not listened to them properly at the hearing and had not accepted that they left India to save their lives. He said that his wife was suffering from depression but the Tribunal had not given any consideration to that fact.

Conclusions

  1. The first matter to be considered is that the Tribunal decided this matter on credibility grounds. The Tribunal did not find the applicants to be credible witnesses and it set out its reasons why it made that finding.[28] Basically, the Tribunal found the applicants’ evidence to be inconsistent and changeable. It also found parts of the applicants’ evidence to be implausible and lacking in detail.[29]
  2. It is well established that credibility findings are factual findings, which are matters for the Tribunal (see Durairajasingham per McHugh J at [67]). Provided that there is evidence upon which such a finding is open to be made, a Court conducting judicial review will not disturb that finding. It is open to the Court to make its own findings based on that factual evidence.
  3. In my view, the matters at paragraphs 82 to 103 of the Tribunal decision[30] contain evidence upon which it was open to the Tribunal to make the credibility findings that it did.
  4. The Tribunal also found that, if the applicants had a fear of persecution in the State of Kerala, it was reasonable for them to relocate to another part of India where Malayalam was spoken. The Tribunal referred to independent country information about India as well the applicants’ own evidence. It preferred the independent country information, which it was entitled to do.
  5. In arriving at its relocation decision, the Tribunal considered the decision of Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs[31] at 442-43. Whilst the Tribunal did not specifically refer to either SZATV v Minister for Immigration and Citizenship[32] or SZFDV v Minister for Immigration and Citizenship[33] , I am satisfied that the Tribunal approached the matter appropriately by considering what was reasonable, based on the circumstances of the particular applicants and the possible impact upon them of relocating within India.[34] In SZFDV, Gummow, Hayne and Crennan JJ said:
  6. Turning to the applicants’ particular grounds, Ground 1 claims that the Tribunal failed to give any valid reason why it considered that the applicants exaggerated their evidence and completely rejected the claims on the grounds that the applicants were not credible witnesses.
  7. This ground is clearly an attempt at merits review of the Tribunal’s findings that the applicants were not credible witnesses. As has been set out above, the Tribunal set out clearly the reasons why it made the adverse findings that it did. These findings were open to the Tribunal on the evidence and there is no jurisdictional error.
  8. The applicants’ Ground 1 has not been made out.
  9. The applicants’ Ground 2 says:
  10. It is difficult if not impossible to see where the Tribunal decision is vague or inconsistent and, in any event, vagueness and inconsistency do not constitute jurisdictional error. The applicants’ claim that the decision was made “erroneously without giving careful consideration to the material facts” is an attempt at merits review. A careful reading of the Tribunal decision shows that the Tribunal considered the substance of the applicants’ claim and there is no indication that the Tribunal failed to take a relevant consideration into account.
  11. The applicants’ Ground 2 has not been made out.
  12. In their written submissions, the applicants claim that the Tribunal fell into jurisdictional error in six ways:
  13. As to claim (a), the Tribunal did consider the question of the first applicant’s father’s political influence. The Tribunal said:
  14. The Tribunal set out its reasons why it did not consider that the applicants had been truthful, namely that their evidence changed and was inconsistent.
  15. Claim (a) does not establish any jurisdictional error on the part of the Tribunal.
  16. The applicants’ claim (b) is a challenge to the Tribunal’s factual findings and is an attempt at merits review, which is not available on judicial review. A failure to question the applicants about an issue does not establish any jurisdictional error because the Tribunal is under no obligation to do so.
  17. Claim (b) does not establish any jurisdictional error on the part of the Tribunal.
  18. The applicants’ claim (c) asserts that the Tribunal took irrelevant considerations into account but does not specify what those irrelevant considerations might be. The claim is, in effect, a challenge to the Tribunal’s factual finding and does not disclose any jurisdictional error.
  19. The applicants’ claim (d) takes issue with the Tribunal’s rejection on credibility grounds of the applicants’ claims about the death of the first applicant’s brother, or at least the failure to provide a copy of his death certificate. The Tribunal said:
  20. The applicants complain that the Tribunal should have allowed them more time to obtain a copy of the brother’s death certificate. Considering the explanation given for the non-production of the certificate, “the second named applicant gave further oral evidence that he could not provide the death certificate as it was returned to India because he delayed getting to his post office box”[38] , it is hardly surprising that the Tribunal was not prepared to extend the time to provide the certificate for any longer than it did.
  21. The applicants’ claim (d) does not disclose any jurisdictional error.
  22. The applicants’ claim (e) refers to “bad faith” on the part of the Tribunal but provides no details. An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. It is not to be lightly made and must be clearly alleged and proved (SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[39] at [43]). There is no evidence of bad faith.
  23. Again, the applicants complain that the Tribunal took irrelevant considerations into account. However, they provide no particulars of those alleged irrelevant considerations and noting to that effect is apparent in the Tribunal decision.
  24. The applicants’ claim (e) does not establish any jurisdictional error.
  25. Finally, the applicants’ claim (f) asserts that the Tribunal failed to question the first applicant about any doubts it had about discrepancies between her evidence and that of her husband. The Tribunal wrote a letter to the applicants on 21st May 2008 inviting their comments on a number of issues[40], including what appeared to be discrepancies in their evidence and the applicants took advantage of that offer and replied in writing[41]. The applicants have had adequate opportunity to make their case to the Tribunal and the Tribunal was under no obligation to question the first applicant any further than it did.
  26. The applicants’ claim (f) does not establish any jurisdictional error.
  27. I am unable to discern any jurisdictional error in the Tribunal decision. It is a privative clause decision and not subject to the order in the nature of mandamus that the applicants seek.
  28. The application will be dismissed.
  29. I will hear submissions as to costs.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Scarlett FM


Associate: S. Polley


Date: 15 January 2009

[1] See Court Book at 50
[2] Court Book at 51
[3] Court Book 85
[4] Court Book 87
[5] Court Book 97
[6] Court Book 134
[7] Court Book 135
[8] Court Book 136-137
[9] Court Book 142
[10] ibid
[11] sic
[12] Court Book 147
[13] Court Book at 147-148
[14] Court Book 195
[15] Clearly, this should read “applicant”
[16] Court Book 196
[17] Ibid
[18] Court Book 199
[19] [1994] FCA 1253; (1994) 52 FCR 437 at 440-1
[20] Court Book 200
[21] Ibid
[22] Court Book 201
[23] Court Book 202
[24] First Respondent’s Outline of Submissions at [6]
[25] (2000) 168 ALR 407; [2000] HCA 1
[26] Court Book 196
[27] Court Book 190
[28] Court Book 196 - 200
[29] Court Book 199
[30] Court book 196 - 200
[31] supra
[32] (2007) 237 ALR 634; [2007] HCA 40
[33] [2007] HCA 41
[34] SZATV at [24]
[35] [2007] HCA 41 at [14]
[36] Court Book 196-197
[37] Court Book 197
[38] Ibid
[39] [2002] FCAFC 361
[40] Court Book 141
[41] Court Book 145

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