SZNUJ & Ors v Minister for Immigration & Anor [2010] FMCA 179 (16 March 2010)

Last Updated: 17 March 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNUJ & ORS v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 179

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection class (XA) visa – no reviewable error – application dismissed. The Applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and have been given the pseudonyms “SZNUJ”, “SZNUK” and “SZNUL”.

Migration Act 1958 (Cth), ss.91X, 424, 424A, 424AA, 426A

Australian Broadcasting Tribunal v Bond (Bond Media Case) [1990] HCA 33 Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 Minister for Immigration & Multicultural &Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 Minister for Immigration and Multicultural Affairs v W64/01A [2003] FCAFC 12 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 VHAP (2002) v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 82

First Applicant:

SZNUJ

Second Applicant:

SZNUK

Third Applicant:

SZNUL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1835 of 2009

Judgment of:

Lloyd-Jones FM

Hearing date:

9 February 2010

Delivered at:

Sydney

Delivered on:

16 March 2010

REPRESENTATION

Applicant:

The Applicant appeared in person with the assistance of a Malayalam interpreter.

Counsel for the Respondents:

Ms L. Buchanan (solicitor)

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application filed on 3 August 2009 is dismissed.
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1835 of 2009

SZNUJ

First Applicant

SZNUK

Second Applicant

SZNUL

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. There are three Applicants before the Court. The First Applicant is married to the Second Applicant and the Third Applicant is the daughter of the First and Second Applicants. The First Applicant was born on 20 November 1948 in Kerala, India, is Catholic and has graduated with Engineering qualifications in India after 21 years of education. Prior to his departure for Australia, he was a businessman in India. The Second Applicant, Applicant Wife, was born on 14 February 1957 in Kerala, India and was a housewife in India. The Third Applicant was born on 8 September 1984 in Kerala, India is Catholic and was a Financial Planner in India before leaving India. All three Applicants rely on the claims stated by the First Applicant in his Protection visa application. For the purposes of this judgment the First Applicant will be referred to as “Applicant”.
2. The Applicant’s claims are summarised below:
   1. The Applicant was educated for 21 years, is an engineer and businessman;
   2. he speaks and writes English and Malayalam;
   3. he is a Christian, attended church every Sunday and donated money to the local church;
   4. was a member of the Student wing of the Congress and donated money to the Congress candidate;
   5. he refused to give money to the Communist Party of India (Marxist) (CPI(M)) leaders and reported this to the police which angered CPI(M) members who subsequently threatened him with violence;
   6. the Applicant made three consecutive payments to the CPI(M) but the CPI(M) failed to acknowledge them;
   7. the Applicant lost business and was subjected to threats; and
   8. that Christians are attacked in Kerala and that he was unable to access State protection as the CPI(M) is in power in Kerala.
3. The Applicants arrived in Australia on 30 November 2008 and applied to the Department of Immigration & Citizenship for Protection (Class XA) visas on 8 January 2009. On 17 March 2009 a delegate of the Minister for Immigration refused to grant the application for a Protection visa and the Applicants were notified of this decision by way of letter on 17 March 2009. The Applicants applied for a review of this decision with the Refugee Review Tribunal (“the Tribunal”) on 9 April 2009 and the Tribunal affirmed the delegate’s decision not to grant the Applicants a Protection visa on 6 July 2009. It is this Tribunal decision, of Susan Pinto (RRT case number 0902659) that is the subject of these proceedings.
4. A Court Book (“CB”) was prepared by the first respondent’s solicitors and marked Exhibit “A”. This is the only evidence before the Court.
5. At the first court date directions hearing, the Applicant was granted leave to file an amended application. Consequently, the Applicant filed an amended application on 9 October 2009 which contains the following grounds:
   • 1. The Tribunal did not give to the Applicants before the hearing the independent evidence that it had about Christians and political situation in Kerala, India. The Tribunal used this information (Court book pages 134 to 136). This was against section 424A of the Migration Act 1958.
   • 2. The Tribunal failed to comply with s.424 of the Migration Act 1958.
     • a) The invitation was not given in accordance with ss424(3)(a) and 424B of the Migration Act.
       • (i) The invitation did not specify the way in which the additional information may be given.
       • (ii) The invitation did not specify the period within which the information was to be given.
     • Therefore I submit that the Tribunal failed to analyse properly the “future harm” that we may face if we have to go back to India.
     • Hence, due to this failure, the Tribunal has committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing my claims.

Tribunal decision

6. The Applicant attended a hearing at the Tribunal on 11 June 2009 at which he gave evidence with the assistance of a Malayalam – English interpreter (CB 99-100). An invitation was extended to the Second and Third Applicant but this was not responded to, nor did they attend the Tribunal hearing (CB 97 – 100). At the conclusion of the hearing, the Applicant was advised that he was entitled to comment on information in respect of certain aspects of the evidence that he had presented and he was also entitled to request a further opportunity to make those comments. The Applicant requested further time and it was agreed that this response would be supplied in writing by 30 June 2009. This invitation was extended to the Applicant at the hearing, pursuant to s.424AA of the Migration Act 1958 (Cth) (“the Act”) (CB 133 at [51] – [52]).
7. On 6 July 2009 the Tribunal affirmed the decision of the delegate (CB 123-142). In respect of the Second and Third Applicants who made claims as members of the First Applicant’s family unit, it was implicit in the claims made that they also had their own claims to fear persecution arising from the same facts as the Applicant. However, as neither the Second nor the Third Applicant attended the hearing, the Tribunal proceeded to decide their claims pursuant to s.426A of the Act without taking any further action to enable the Second and Third Applicants to appear before it (CB 129 at [27] and CB 137 at [63]).
8. The Tribunal considered the Applicant’s evidence given at the hearing, his post hearing statement, and independent country information regarding Christians in Kerala. The Tribunal found that the Applicants did not have a real chance of suffering harm on account of their Christian beliefs if they were to return to Kerala (CB 137 at [66] – [67]).
9. The Tribunal accepted that the Applicant may have faced tensions with the CPI(M) over demands to employ their members and that he was asked to make donations to the CPI(M). However it did not accept that the problems with the CPI(M) resulted in any harm to the Applicant’s business such that he or his family would suffer serious harm (CB 138 at [68].
10. The Tribunal did not accept that the two main incidents of harm claimed to have been suffered by the Applicant’s family had occurred:
    1. The Tribunal did not accept that the Applicant’s office was ransacked. The inconsistencies in the Applicant’s evidence to the delegate and the Tribunal regarding when the incident occurred and in the absence of independent supporting evidence resulted in this finding (CB 138 at [68] – [70]); and
    2. The Tribunal accepted that the Third Applicant had been involved in a traffic accident requiring hospitalisation in 2008, however it did not accept that the accident had any political dimension to it due to the inconsistency between the evidence given by the Applicant to the Tribunal and that provided in his Protection visa application (CB 139 at [71]).
11. The Tribunal accepted the Applicant had been involved in student politics in 1970 however did not accept that this would result in any harm in the future and the Applicant had not claimed to have ever suffered such harm in the past (CB 140 at [72]).
12. The Tribunal acknowledged that it was prepared to accept some of the Applicant’s claims however, it did not accept that the Applicant or his family received threats or harm from the CPI(M). The Tribunal formed the view that the Applicant had embellished incidents in an attempt to create an adverse political profile for himself and that he had not given a truthful account of the reasons for him and his family to leave Kerala (CB 137 at [65]).

Consideration

Ground 1

13. In this ground the Applicant alleges a breach of s.424A of the Act as the Tribunal had failed to supply the Applicant with copies of independent advice that he had obtained about questions and the political situation in Kerala. As this material is “not specifically about the Applicant or another person and is just about a class of persons of which the Applicant or the other person is a member” it falls within the exemption within s.424A(3)(a): VHAP (2002) v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12] – [14], [21]; Minister for Immigration & Multicultural &Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [64] – [74], [112] – [138]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.
14. As information concerning Christians in Kerala and the political situation in Kerala set out in the Tribunal decision (CB 134 – 137 at [53] – [61]) is clearly about a class of persons and makes no specific reference to any of the Applicants in this matter so the contents clearly falls within the exception of s424A(3)(a). In these circumstances this ground of review cannot be sustained and should be dismissed.

Ground 2

15. In this ground the Applicant claims that the Tribunal failed to comply with s.424 of the Act. This section of the Act empowers the Tribunal to seek additional information in the following terms:
    • (1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
    • (2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
    • (3) A written invitation under subsection (2) must be given to the person:
    • (a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
    • (b) if the person is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
16. This ground of review is couched in the language that suggests that an invitation was made by the Tribunal but failed to specify particulars in respect to the manner in which it was supplied. The Applicant has not identified the invitation that was alleged to have been made by the Tribunal. A review of the Tribunal decision makes no reference to an invitation extended under the provision of s.424 of the Act. I acknowledge that there may be some confusion in the Applicant’s mind in respect to the invitation extended to the Applicant pursuant to s.424AA on 26 June 2009. I am satisfied that the request made pursuant to s.424AA is clear in the terms expressed and should not be confused as an invitation made under s.424 (CB 133-4 at [52]). In the circumstances I am satisfied that the Tribunal was not required to extend any invitation under the provision of s.424 and that this aspect of Ground 2 cannot be sustained.
17. Ground 2 also takes issue with the Tribunal’s analysis of whether the Applicants face future harm and asserts that the Tribunal has failed to carry out the ‘real chance’ test. The Applicants do not particularise how the Tribunal has failed to carry out this analysis. I agree with the written submissions prepared by Ms Buchanan that there is no error by the Tribunal in its factual findings that the Applicants do not have a well founded fear of persecution as claimed.
18. The Tribunal entered into an estimation of the probability of certain persecutory events occurring in the future and based on the estimated probabilities, it then determined whether there was a real chance of Convention related persecution. The Tribunal in its ‘Findings and Reasons’ stated:
    • [at 65]
    • The Tribunal is prepared to accept some aspects of the Applicant’s claims. However, in relation to his claims of threats and harm from the CPI(M) to either himself or his family, the Tribunal does not accept that this occurred and considers that the Applicant has significantly embellished particular incidents in an attempt to create an adverse political profile for himself and his family. The Tribunal is not satisfied that the Applicant has given a truthful account of his reasons for leaving Kerala and is not satisfied that the Applicant, the Applicant wife or the Applicant daughter have ever suffered serious harm for reasons of their political opinion or imputed political opinion in India. The Tribunal is, therefore, not satisfied that the Applicant or his family had or currently have any adverse political profile in Kerala such that they would suffer harm upon their return to Kerala. Nor is the Tribunal satisfied that the Applicant or his family had previously suffered harem as a result of their Christian religion and is not satisfied that there is a real chance that they would do so in the future.
19. The Tribunal considered:
    1. the Applicant’s claim relating to his Christianity;
    2. the increase of the harassment of Christians in Kerala;
    100. claims that as a businessman he was required to employ CPI(M) workers and CPI(M) persons create problems for his business if he did not acquiesce;
    4. claims that as a result of refusing to give increasingly large sums of money and to employ CPI(M) workers, he and his family were threatened and harmed;
    5. the Applicant’s claims in relation to extortion attempts and the threats of harm from the CPI(M) ;
    6. whether the Applicant had been truthful in relation to other main incidents which he claimed occurred as a result of his refusal to pay money and possessions to the CPI(M), being an attack on his daughter; and
    7. claims relating to his involvement in student politics.
20. The Tribunal applied the ‘real chance’ test and its findings made were based on material before the Tribunal and were open to it: Australian Broadcasting Tribunal v Bond (Bond Media Case) [1990] HCA 33. Having engaged in an assessment of the probability of their future persecution and made findings on that question, the Tribunal is not required to do anything further: Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 577 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ.
21. In Minister for Immigration and Multicultural Affairs v W64/01A [2003] FCAFC 12, His Honour French J [as he was then] summarised the principles in Guo as follows:
    • [37] The Tribunal, in assessing claims and evidence before it, is required to undertake a process of "looking to the future" which is the "essence of the Chan test" - Wu at 278. Chan was acknowledged in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 as establishing that a person can have a well-founded fear of persecution even though the probability of persecution occurring is well below fifty per cent. But the joint judgment in that case went on to caution:
    • "... to use the real chance test as a substitute for the Convention term "well-founded fear" is to invite error." ( p572)
    • The application of that test may require findings that an event might or might not occur in the future but does not require the decision-maker to engage in conjecture or surmise (at p572). The future-looking process accepted in Wu was elaborated in Guo where it was said that:
    • "... unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future." (p575)
    • In most cases that process will require findings of past events as the bases for inferences about what will happen in the future. The Tribunal is entitled to weigh material before it and to make findings before it engages in any consideration of whether or not a fear of persecution on a Convention ground is well-founded. If the findings are sufficiently strong, the Tribunal may not be bound to consider the possibility that they are inaccurate. The examination of past events does not require definitive findings as to their occurrence for:
    • "... in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future." (p576)
    • The question to be addressed by the Tribunal is whether an applicant has "a well-founded fear of persecution for a Convention reason having regard to possible past occurrences and possible future events" - WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [38].
22. The Tribunal considered whether there was a real chance of Convention related persecution occurring to the Applicants in the future based on an acceptance that past events had occurred. It acknowledged the existence of some ongoing tension with the CPI(M) and the possibility of random and isolated incidents that could not be ruled out. It addressed that claim of fears finding that it was not satisfied that there was a real chance that the Applicant would be subject to threats or physical harm.
23. In summary, the Tribunal found [at 73]
    • The Tribunal has considered all of the evidence including the documentation relating to the Applicant’s business and his daughter’s accident as provided to the Department. The Tribunal had accepted that the Applicant may have been asked to employ CPI(M) persons and also accept that he had some minor involvement in politics some 30 years ago. The Tribunal has considered that there is nothing unusual about a successful businessperson being asked to do so. The tribunal has also accepted that as a person with a profitable business, that Applicant was asked to make political donations, not only to the CPI(M) but also to the Congress Party. The Tribunal does not accept that such requests were in the manner of extortion or that the Applicant or his family were ever threatened, or physically harmed or that his business ever suffered significantly as a result. The Tribunal has also considered the evidence relating to Christians in Kerala, but does not accept that the Applicant or his family has been or will be the subject of harm for reasons of their religion. Accordingly, the tribunal is not satisfied that there is a real chance that the Applicant, the Applicant wife or the Applicant daughter will suffer harm in India now or in the reasonably foreseeable future for reasons of their religion, imputed or actual political opinion or for any other Convention reason. The Applicants do not, therefore, have a well founded fear of persecution in India.
24. This passage clearly demonstrates that the Tribunal did make an assessment of the probability of the applicant’s future persecution and found that it was not satisfied that there was a real chance that they would suffer harm now or in the reasonably foreseeable future. The claim of failure to apply the test cannot be sustained.

Conclusion

25. The Applicant is a self-represented litigant who has received assistance from a legally qualified panel advisor in reviewing his case. However, that advisor did not provide him with an amended application and the source and author of the amendment is unknown. It was apparent at the Court hearing that the Applicant did not comprehend the issues ventilated and the only submissions made by him was a further attempt to elaborate on the information before the Court in support of his Protection visa application.
26. I am satisfied that the oral and written submissions presented by
    Ms Buchanan address the claims made and that the grounds of review cannot be sustained. On a fair reading of the face of the Court Book and the Tribunal decision, a jurisdictional error is not apparent. Consequently, the application should be dismissed with costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

Date: 16 March 2010