SZNCX & Anor v Minister for Immigration & Anor [2009] FMCA 679 (9 July 2009)

Last Updated: 6 August 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNCX & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 679

MIGRATION – RRT decision – Christian woman from Kerala – claims of harassment disbelieved – alternative finding that protection available – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth), ss.424AA, 424A(1), 424A(3)(a), 425

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415, [2009] FCAFC 46

First Applicant:

SZNCX

Second Applicant:

SZNCY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG19 of 2009

Judgment of:

Smith FM

Hearing date:

9 July 2009

Delivered at:

Sydney

Delivered on:

9 July 2009

REPRESENTATION

Counsel for the Applicants:

First applicant in person

Counsel for the First Respondent:

Mr P Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application is dismissed.
(2) The applicants must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG19 of 2009

SZNCX

First Applicant

SZNCY

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicants are a husband and wife, who arrived in Australia in May 2008, and on 11 June 2008 applied for protection against return to India. The refugee claims which were relied upon were those of the wife, and no separate claims were made concerning the circumstances of the husband. It is also the wife who has presented their case to the Court today, and I shall refer to her as “the applicant”.
2. A statement attached to the protection visa application referred to the applicant’s background in a Christian family in Kerala. She said she belonged to a “Christian Other Backward Community” receiving designation as an “OBC” caste, and she claimed to have suffered discrimination in her education and social life. However, her protection visa referred to her having received higher education, and having occupations in the finance industry until her departure from India.
3. Her statement also referred to violence between Christians and Muslims in Kerala, which escalated in 1994. The applicant’s statement said: “at this time my family members and I were assaulted by Muslim armed thugs in [her village]”. As a result, she claimed to have suffered discrimination and harassment by the Muslims, and “many friends and distant relatives were killed by Muslims”. No details were provided of these claims.
4. Her statement then referred to her graduating in 2004, and joining church members to work for disadvantaged and socially discriminated children and women from lower castes. She said that she had done this work since 2004 on behalf of her church, including teaching, conducting bible classes, assisting with clothing and financial assistance. Her statement said that this caused some such people to voluntarily become Christians to obtain social equality.
5. Her statement then referred to harassment in recent years:
   • 9. In 2006 and early 2007 I along with other workers for the Church received threatening phone calls from Hindu Fundamentalists political party and accused us that we were converting the Schedule Caste’ and Schedule Tribes’ Hindu to Christianity.
   • 10. In September 2007 while I was going to work I was stopped by thugs of the Hindu political party RSS and harassed me for my works for the Schedule Caste’ and Schedule Tribes’ in my village. I was told that I would be punished by them for my past activities. These political party thugs went and intimidated and attacked the Schedule Caste’ and Schedule Tribes’ not to become Christians. We should stop our activities immediately.
   • 11. In November 2007 I obtained me a passport in order to leave India for my safety and welfare.
   • 12. In January 2008 a group of Schedule Castes and Schedule Tribes approached and requested me to help them with children education. I contacted the Church who asked me to work for them on their behalf but they advised me to be cautiously while I am working for the Schedule Castes and the Schedule Tribes in my village. While I was preparing to work with other members all we received threatening call to stop our activities for the Schedule Castes and the Schedule Tribes. We were threatened that we would be punished for our earlier religious activities. This time one of our group members was severely assaulted and physically abused by the RSS supporters.
6. She referred to coming to Australia, and said:
   • 17. The Kerala police and the CPI (M) is in power is slowing/reluctant to protect me from these problems because of my religious activities. I understand the CPI (M) is negligent in protecting me from the adverse experiences.
7. No support for these claims was presented to the Department of Immigration, but the applicant was interviewed by a delegate, who accepted that she was a Christian Catholic and found it “plausible” that she had been a victim of fanatical Muslims and Hindus. The delegate thought, however, that effective protection from religious-motivated harm would be available to the applicant in Kerala. The delegate refused the applicants’ protection visas on 21 August 2008.
8. The applicant appealed to the Tribunal and continued to represent herself in presenting her claims. She attended a hearing of the Tribunal unaccompanied by her husband, which was held on 30 October 2008. A full description of the hearing is contained in the Tribunal’s statement of reasons, and I have no reason not to accept that description. I advised the applicant at a show-cause hearing that she should consider presenting to the Court a transcript if she did not accept the Tribunal’s description, but she has not presented a transcript.
9. According to the Tribunal, the applicant maintained that she was under threat if she returned to India, from people whom she said belonged to the CPI(M) Party in her village who opposed her activities. She confirmed her personal background. The Tribunal asked her questions about what had happened in 1994 and in the more recent years, and the applicant referred to several incidents of harassment which she claimed to have encountered.
10. It is clear that the Tribunal put to the applicant its concerns about some of the details which she provided to it, but which had not been mentioned or suggested in her visa application. This included a claim that at the beginning of 2005 people “came to her house and tore her books, held her father by the throat and threatened to kill him”.
11. The Tribunal questioned the applicant about her claim that it was the CPI(M) who threatened her, putting to her that this appeared inconsistent with independent country information suggesting that this party favoured secular government and supported the rights of minorities. The Tribunal also put to the applicant that it was hard to believe that the current government of Kerala, which was a coalition of the CPI(M) and other left-wing parties, would provide any support for people harming her because of her social work in helping backward castes, or would support Hindus who wanted to attack her for bringing about conversions. The applicant attempted to explain how this came about in her village.
12. According to the Tribunal, at the end of the hearing:
    • 53. I explained to the Applicant that, on the basis of all the information before the Tribunal, I had doubts about her claim to have suffered harm in India in the past and her claim that she would be unable to obtain protection from harm from the Kerala authorities. I noted that this information was important for the decision in her case because it could lead to a view that she would not face harm if she returned to India and that she could obtain protection from the authorities. This could indicate that she was not a refugee and that the decision of the delegate to refuse to grant her a protection visa should be affirmed. The Applicant said she understood the information and its importance. I invited her to comment on the information or respond to it, noting that she could do so immediately, at a resumed session of the hearing or in writing. She said she could provide evidence from the local government, church and media relating to harm she and her family had suffered. Asked how long she required to obtain this information she said it was more than three weeks. I noted that she had been in Australia for five months without obtaining this material. She said she had not understood its importance until now. It was agreed that she could have one month, until 27 November 2008, to submit the material.
13. After the hearing, the Tribunal received a brief submission from the applicant attaching a letter purporting to be signed by the parish priest of her village Catholic church. It contained a general statement:
    • [The applicant] is the team leader of the women group so Hindu fundamentalist focussed to [her]. Number of times our social group mentally and physically attacked by Hindu fundamentalists. These Hindu fundamental group were strong in our village and state. We are helpless to protect social group from Hindu fundamentalist. So I advise to [the applicant] go to any safe country and I also give possible help to her journey to Australia.
14. The Tribunal made a decision on 10 December 2008, which affirmed the delegate’s decision. Its statement of reasons accurately and fully recited the claims made by the applicant, and the evidence which was presented to it in documents and at the hearing. The Tribunal also identified apparently relevant general information concerning other backward castes, Christians in Kerala, the CPI(M), politics and government in present day Kerala, and the relationships between the CPI(M) and fundamentalist Hindu groups RSS and BJP, which appear to have had little electoral support in Kerala.
15. In its “Findings and Reasons”, the Tribunal said that it was not satisfied that the applicant’s account of having suffered harm in India in the past was credible. It gave a series of reasons explaining that lack of satisfaction. It said:
    • 71. In the first place the Applicant’s evidence at the hearing was notably vague regarding the specific incidents of harm claimed by her. She provided little or no circumstantial detail about attacks and threats which, if they had occurred could reasonably be expected to have been dramatic and memorable incidents in her life. ...
16. The Tribunal said this defect emerged in her evidence concerning events in 1994. It said that there was the “appearance of new claims at the hearing” about events in 1994 and in later years. The Tribunal said: “I find that the Applicant’s preparedness to adapt her evidence in this way casts doubt over the credibility of her claims in general”.
17. The Tribunal discussed the applicant’s evidence about the identity of the persons who were said to have threatened and harmed her, and found inconsistencies in that evidence, a finding which appears to have been open to it on the evidence. The Tribunal said: “I find this inconsistency in the Applicant’s evidence casts strong doubt over her claims to have been harmed by Hindu fundamentalists of any political persuasion”.
18. The Tribunal gave a further reason for doubting the credibility of the applicant’s claims:
    • 74. Finally, on the information available to the Tribunal, I am not satisfied as to the credibility of the Applicant’s claim that the current coalition government in Kerala, led by the CPI(M) is opposed to her OBC caste or class or to the Scheduled Castes or Scheduled Tribes among whom she claims to work. Nor am I satisfied that the government opposes her own Christian religion. I am not satisfied that the government opposes the welfare work among ‘untouchable’ Hindus in which she claims to have been involved. Nor am I satisfied that the government opposes such people converting to Christianity as a result of that work. I am not satisfied that the government would have withheld protection from the Applicant for any reason if she had sought it as a result of being threatened by Hindu fundamentalists.
19. The Tribunal said that it accepted that the applicant was a Christian and had been a member of the congregation of the Catholic church in her village, that she had been involved in teaching literacy skills to “untouchable” Hindus, and that this activity may have resulted in a number of Hindus converting to Christianity. However, it said that it was not satisfied that she was ever harmed or threatened as a result of the activity, nor that she was ever forced to move away from her village or forced to leave India and come to Australia for safety.
20. The Tribunal said in relation to the letter from the priest:
    • 76. I have reached this conclusion having had regard to the letter from [the church] submitted by the Applicant on 27 November 2008. Although it appears unusual that the writer of such a letter would not identify himself more fully than with the single name ‘Abel’ I am prepared to give the Applicant the benefit of the doubt by accepting that the letter was genuinely written by a priest from this church. Having done so, however, I am not satisfied that any significant weight can be placed on it. The vagueness which characterised the Applicant’s evidence at the hearing is also present in the claims advanced by Abel. He gives no indication as to who the ‘Hindu fundamentalists’ in the village might be and provides no clearer picture of the harm inflicted than the comment that ‘Number of times our Social Group mentally and physically attacked’ by them. He does not say when or how these attacks occurred, whether anyone was injured or why it was only through flight to another country that the Applicant could find safety. Nor does he explain how it was that he helped her to travel to Australia.
21. Based upon its findings about the credibility of the applicant’s history, the Tribunal was not satisfied that there was a real chance that the applicant would suffer harm by reason of being involved in social welfare activity within the Hindu untouchables if she returned to India.
22. The Tribunal gave an alternative reason for finding that the applicant did not have the protection of the Refugees’ Convention:
    • 77. ... Even if I were to accept that she would be at risk of harm from Hindu fundamentalists for such a reason (and I do not accept this to be the case) I am not satisfied that she could not find protection against such harm. I note in this regard that government in Kerala traditionally alternates between coalitions led by the CPI(M) and the Congress Party of India, and that these can both be identified as supporting secular policies supportive of minorities. The BJP, which has at times espoused Hindu fundamentalist policies and has been a vehicle for the RSS, is present in the State but has had no parliamentary representation in the State since the 2001 elections. On this basis I am not satisfied that the Applicant would be denied protection from Hindu fundamentalists in Kerala in the reasonably foreseeable future even if there were to be a change of government in the State.
23. The Tribunal noted that the applicant had not suggested to the Tribunal that harm at the hands of Muslims was a “source of harm for her should she return” and it said there was “nothing in the information before the Tribunal to suggest that it would be so”. The Tribunal noted that the applicant had claimed to suffer discrimination as a member of an OBC class, but it was not satisfied that the CPI(M) government did not support her caste, and it said: “there is nothing on the face of the information before the Tribunal to indicate that the Applicant would be at risk of harm from any other source in Kerala”.
24. The Tribunal concluded:
    • 79. On the basis of all the information before the Tribunal I am not satisfied that the Applicant has a well-founded fear of persecution because of her work among Hindus as a Christian or for any other Convention-related reason should she return to live in Kerala in India, now or in the reasonably foreseeable future, and I am not satisfied that she is a refugee.
25. The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter to the Tribunal for further consideration. I can only make that order if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether she would be at risk if she returned to India. I do not have power to decide whether she should be given any permission to stay in Australia.
26. The applicant’s original application contained no grounds of review other than the following:
    • The grounds of the Application are:
      • 1. The RRT did not understand my Convention claims which I advanced
      • 2. The RRT misunderstood my Convention claims for a protection visa
      • 3. The RRT did not follow the proper procedure fairness required by the Migration Act
    • Particulars of the grounds will be filed and served when required by the Court.
27. No particulars were filed with the application or subsequently, and I am unable to give these grounds any arguable substance separate from the matters raised by her amended application.
28. The amended application contains grounds which appear to have been compiled from unhelpful precedents which are circulating currently. The following grounds appear in the amended application:
    • 1. The Refugee Review Tribunal denied the applicants procedural fairness by reaching adverse conclusions that the Tribunal did not find the first applicant to be a credible or reliable witness, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
    • 2. The member of the Tribunal 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 applicants was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:
      • a. 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 claims are plausible, which was the case here.
    • 3. The Tribunal did not give to the applicant before the hearing the information that it had about the Indian politics religious informations and it did not give to the applicant the country information it had about Kerala and India. The Tribunal used this information while making the decision. This was against section 424A of the Migration Act 1958.
    • 4. The decision of the second respondent was effected by jurisdiction error in that the second respondent failed to consider the applicants claim that she feared persecution on the basis of her social welfare activities with Hindu untouchables, under the auspices of her Church which lead Hindus conversions to Christianity.
      • 4. The Tribunal applied the wrong test:
        • a) The Tribunal left out individual elements of the applicant claim and tested weather they individually amounted to persecution rather than look at the claim as a whole determine whether the claim so considered amounted to persecution.
        • b) By requiring independent evidence of the fact before the Tribunal would accept a claim being made by the first applicant the Tribunal was in fact, placing too high an onus of proof on the applicant and failed to give the applicant the benefit of the doubt.
29. In relation to the first ground, in my opinion there is no substance to the contention that the applicant was denied an opportunity to be heard in relation to the matters upon which the Tribunal determined the credibility of the applicant’s history. According to the description of the hearing given by the Tribunal, it put to the applicant very clearly in the course of the hearing the concerns it had, and the applicant attempted to meet them in her responses. She was given the further opportunity after the hearing to present more material if she wished to. I can find no ground for finding a failure to afford obligations arising out of s.425 of the Migration Act 1958 (Cth), including the ground identified by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152.
30. The second ground is obscurely worded, but appears to contend that the Tribunal misapplied the “real chance test” by failing to give the benefit of the doubt to the applicant in relation to her claimed history. However, very well established authorities allow the Tribunal to put at the forefront of its consideration whether it is satisfied as to a claimed past history before it applies the real chance test in relation to a risk of future harm (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220, and SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [42]- [53]).
31. I can detect in the reasoning followed by the Tribunal no legal or other jurisdictional error relating to the application of the real chance test. The Tribunal was entitled to consider whether it was satisfied by the truth of the applicant’s claims, and being dissatisfied, apparently without any doubt, it was not obliged to consider the matter on the hypothesis that its findings were wrong.
32. Moreover, as I have indicated above, the Tribunal did consider the applicant’s situation upon the alternative hypothesis, and arrived at a conclusion that it was not satisfied that the applicant would be denied protection if she returned to Kerala and had cause to be concerned about Hindu fundamentalists.
33. Ground 3 is misconceived in law. The Tribunal is under no obligation to put to an applicant general country information concerning the relevant situation in Kerala by way of a written invitation under s.424A(1) or orally under s.424AA (see s.424A(3)(a), Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572, and SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415, [2009] FCAFC 46). Moreover, the Tribunal does appear to have put the gist of the general information to the applicant orally in the course of the hearing and to have explained its relevance to the case. Its description of the hearing therefore suggests that it may have followed procedures under s.424AA in relation to this information, even if not required to do so.
34. Ground 4, first appearing, is plainly wrong. The Tribunal undoubtedly did address that claim.
35. Ground 4, secondly appearing, is difficult to understand in the absence of particulars and argument. I can identify no element in the applicant’s claims which the Tribunal did not assess, including such claims as were interrelated. I consider that the Tribunal fully addressed all the claims which were before it as a result of the applicant’s evidence.
36. In relation to paragraphs (a) and (b) I can identify no “wrong test” applied by the Tribunal. In so far as they contend that the Tribunal failed to give “the applicant the benefit of the doubt”, I would reject this contention as a ground of jurisdictional error for the reasons I have explained above. In fact, the Tribunal did not “require independent evidence” of the applicant’s claimed history, and it was entitled not to be persuaded by the applicant’s oral evidence for the reasons which it gave.
37. The applicant today presented a well considered set of oral submissions addressing the Tribunal’s reasoning, but making no reference to the contentions in the amended application. Unlike many applicants before this Court, she showed that she had read and carefully considered the reasoning of the Tribunal, and she correctly identified the foundations for the Tribunal’s reasoning. She then attacked those foundations with a series of submissions.
38. Unfortunately, but understandably since the applicant is not a lawyer conversant with the concepts of jurisdictional error, I do not think her submissions went beyond a critique of the merits of the Tribunal’s reasoning. I do not consider that she identified anything which evidenced jurisdictional error by the Tribunal in performing its function to assess the credibility of her claims and her chances of persecution if she returned to India.
39. Thus, the applicant made a series of points concerning the Tribunal’s assessment of the situation generally in Kerala and in her village in particular. She invited me to look at general information which she had not given to the Tribunal, and which may not have been available to it, in relation to the 1994 clash between Christians and Muslims in her locality, and she also referred to what she claimed was a repetition of such clashes this year. However, as I pointed out to her, the Court cannot send her case back to the Tribunal based on evidence which was not available to the Tribunal, and which it did not consider for that reason.
40. The applicant sought to explain to me the “real situation” in her village in relation to Christians attempting to help lower castes, and why members of the CPI(M) may have been associated with fundamentalist Hindu opposition to their activities. It is unclear how much of these explanations had been given to the Tribunal. I am not persuaded that the Tribunal did not take her evidence about these matters properly into consideration. I am not persuaded that it was not open to the Tribunal to form a different picture of the likely position of the authorities and of the CPI(M)-led government in particular, which was inconsistent with the evidence given by the applicant to the Tribunal.
41. In relation to the Tribunal’s adverse conclusions concerning her personal experiences in 1994 and in the recent years, the applicant submitted that when appearing before the Tribunal she was faced by a strange, new procedure and that she became nervous and agitated in the course of the Tribunal’s questioning. She criticised the Tribunal for, on the one hand, not understanding that a person in her position might not put all details in a protection visa application, and also for then disbelieving her because of extra details provided at the hearing.
42. These are points concerning the presentation of refugee applications which I am sure the Tribunal is generally aware of and takes into account. In the present case, I am not satisfied that the present member did not bear those considerations in mind when assessing the applicant’s evidence. He has recorded the explanations which the applicant gave about the absence of details in her original statement, and I consider it was open to him to regard the omission of some of the details as being pertinent to an assessment of credibility. I am not persuaded that the points found by the Tribunal, which it regarded as reflecting adversely on the credibility of her claims, were not points which were reasonably open to it on a fair assessment of her evidence. Particularly so, in the absence of a transcript of the hearing, and in the absence of any other evidence pointing to any appearance of a closed mind on the part of the Tribunal.
43. Similarly, I consider that it was open to the Tribunal not to be persuaded by the letter from the priest, to cause it to overcome the difficulties it had with the applicant’s own evidence. I consider that it was open to the Tribunal not to regard the priest’s letter as substantially advancing the applicant’s credibility.
44. Moreover, even if the Tribunal’s assessment of the applicant’s claimed history of harassment in her village was incorrect, the Tribunal did address the hypothesis that she had faced and would face harassment. I consider that its conclusion about the availability of protection in Kerala provided an independent reason supporting its decision that the applicant was not a person to whom Australia owed protection obligations.
45. For the above reasons, after carefully considering all that the applicant has put to me today, I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 5 August 2009