SZEXI v Minister for Immigration & Multicultural Affairs

Proceedings in the Federal Magistrates Court 6 Before the Federal Magistrate, the appellants sought review of the Tribunal's decision on three grounds. His Honour rejected two of these grounds as attempts to review the merits of the Tribunal's decision. 7 The third ground of review concerned the Tribunal's application of s 91R of the Migration Act 1958 (Cth). His Honour held that the Tribunal's application of s 91R was in accordance with Minister for Immigration & Multicultural & Indigenous Affairs v VBAO (2004)139 FCR 405 ('VBAO') and accordingly that the Tribunal had not made a jurisdictional error. His Honour dismissed the application.

8 On 4 November 2005, the appellant filed a notice of appeal in this Court claiming that the Tribunal erred in failing to consider the totality of the appellants' claims and in its application of s 91R of the Migration Act 1958 (Cth). At the hearing before me the appellants abandoned these grounds and sought leave to file in Court an amended notice of appeal which, by their own admission raises two issues that were not agitated before the Federal Magistrate. The amended notice of appeal alleges that:

1. the Tribunal made a jurisdictional error in failing to consider whether the physical violence and death threats directed towards the appellants cumulatively constituted serious harm; and 2. the Tribunal erred in finding that the appellants had access to adequate and effective protection from the Indian authorities. 9 In relation to such an application, the Full Court of this Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 ('VUAX') held (at [48]): 'The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.' 10 The appellants, who were legally represented in the Federal Magistrates Court, have not proferred any adequate explanation for the failure to raise these points below. There would not seem, however, to be any significant prejudice to the respondent in their being raised now and Ms Burnett who appeared for the first respondent did not refer to any prejudice. Ultimately, therefore, whether leave should be given depends on whether the grounds now put forward have any likelihood of succeeding. I shall therefore consider the application on that basis. Consideration 11 As noted above at [4], the Tribunal did not attach the same significance as the appellants to the incidents reported by them. That, however, is a matter for the Tribunal not for this Court or the Federal Magistrates Court. Section 91R of the Migration Act 1958 (Cth) deals with the degree of harm necessary to show persecution and provides: '(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct.

(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.' 12 As long as the Tribunal understands the nature of the test imposed by s 91R , which is a question of law, it is for the Tribunal to decide, as a matter of fact, whether what has occurred falls within the section; that is, whether the harm is serious harm and whether there has been systematic and discriminatory conduct. 13 In support of the first ground of appeal in the proposed amended notice of appeal, Counsel for the appellants, Mr Zipser, referred to the comment of Merkel J in VTAO v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 81 ALD 332 at [65] where his Honour said: 'The RRT … failed to consider the cumulative effect of all of the forms of harm which on its findings of fact the applicant child might suffer, and then address the question of whether the totality of that treatment met the legislative criterion of persecution involving serious harm.' 14 Mr Zipser claims that the Tribunal here made the same mistake. He based this claim on the way in which the Tribunal expressed its reasons and, in my view, in doing so he subjected the expression of those reasons to over zealous scrutiny. 15 Under the heading 'Claims and Evidence', the Tribunal described the appellants' account of their experiences in some detail. When it came to recording its findings, under the heading 'Findings and Reasons', the Tribunal stated its conclusion and summarised the incidents more succinctly. The Tribunal accepted that the incidents described by the appellants had occurred, "given their plausibility in the light of independent country information … and the consistency of both applicants' testimony in relation to these incidents". The Tribunal went on to say that it was not satisfied that the incidents constituted serious harm or mistreatment within the meaning of s 91R of the Migration Act. In explaining this conclusion the Tribunal took, in turn, the incidents described by the appellants and summarised them in largely factual terms. It referred, however, not only to the physical actions of the RSS activists, but also to the intimidation, threats and warnings that the appellants had experienced. The Tribunal then explicitly referred to the cumulative effect of the incidents it described and said: 'I am satisfied that, looked at cumulatively, these six incidents, occurring over a three-year period, do not provide a basis for a finding that the applicants face a real chance of Convention-based persecution on return to India in the circumstances applying now and in the reasonably-forseeable future.' 16 Later in its reasons the Tribunal specifically referred to the appellants' claims, at a number of points in their written and oral testimony, that they had been threatened with death and feared that they would be killed if they returned to India. The Tribunal stated that these threats did not in themselves amount to 'a sufficient degree of intimidation as to constitute serious harm or persecution'. Mr Zipser focused on this separate treatment as support for his submission that although the Tribunal had looked at the incidents of violence cumulatively it had not considered the incidents and the threats cumulatively. This submission involves a misreading of the Tribunal's reasons. 17 The Tribunal selected the issue of death threats for specific mention only in the light of the proposition that a threat to life prima facie constitutes serious harm within the meaning of s 91R of the Migration Act. This proposition, which had been accepted in the Federal Magistrates Court, was rejected on appeal by Marshall J in VBAO. In any event, the Tribunal did not accept that such threats as the appellants had received amounted to serious harm or persecution. In the Tribunal's view it was reasonable to regard such threats, '…as part of the on-going inter-communal tension existing in India in which the applicants are involved as defenders of, and advocates for, low-caste Hindus.'

This conclusion was open to the Tribunal and it is not for this Court to interfere with that finding. 18 The second ground of appeal in the amended notice of appeal claims that the Tribunal erred in assessing the likelihood and availability of effective protection from the Indian authorities. The appellants claim that the Tribunal failed to take into account their evidence about a relocation they had made to avoid harm and the Tribunal's positive finding as to their credibility in assessing their evidence regarding several attempts to seek police protection. In his written submissions Mr Zipser referred to the comment of Kirby J in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [130], that "independent country information can never be determinative of the outcome of an individual case". Clearly it would be an error for the Tribunal not to consider the individual circumstances of a particular applicant. In my view the Tribunal in this case did not make such an error. 19 The Tribunal considered the specific claims of the appellants in the light of the independent country information available to it. It said: ' I find that there was no official quality to these actions and that nothing in the testimony of the applicants or the independent country information cited above establishes that the authorities tolerate or are unable to control such actions. When asked at hearing about attempts to seek redress from the authorities, the applicants stated that the police were not prepared to act against persons they believed to be influential; the applicants also said on occasion they had not reported incidents to the police because they believed the police was sympathetic to the pro-Hindu activists. In the light of the independent country information cited above, I do not accept those claims and consider that the applicants have access to adequate and effective protection from the Indian authorities if incidents of the kind they fear recur on their return. This is not to say that India can be described as presenting as consistent a record in the maintenance of law and order, and hence the protection of its citizens, as is the case in countries less marked by inter-communal conflict. But it is not necessary that the government can guarantee protection. … My finding is that these applicants have not established in the evidence before me that they face more than a remote chance of serious harm or mistreatment arising from any persecutory treatment of them in Convention terms." 20 Insofar as the appellants claim that the Tribunal should have come to a different conclusion because it had found them to be credible witnesses in reporting incidents of violence, I find that this is an invitation to me to review of the factual findings made by the Tribunal. As I have previously explained the Tribunal's acceptance of the appellants' account of their experiences did not involve it accepting the significance that the appellants attached to these experiences. There was no general finding of credibility in relation to the appellants that would make it surprising for the Tribunal to reject some of their evidence. The position is that the Tribunal accepted some of their evidence and rejected other parts. There is nothing unusual in that. Moreover, there is nothing in the Tribunal's reasons to suggest that it did not deal appropriately with this issue or with the evidence relating to relocation. This ground of appeal is an invitation to review the factual findings of the Tribunal and there is no basis on which I can do so. 21 For these reasons, I do not think the grounds of appeal raised in the amended notice of appeal are of such merit that the interests of justice require that leave be given to the appellants to rely on the grounds that were not raised before the Federal Magistrate. Leave is therefore refused. It follows that the appeal must be dismissed and the appellants must pay the first respondent's costs. I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 28 February 2006 Counsel for the Appellant Mr B Zipser

Date of Hearing: 22 February 2006

Date of Judgment: 28 February 2006