SZLPL v Minister for Immigration and Citizenship

Federal Court of Australia|2008-09-12|Before: Reeves J

INTRODUCTION 1 This is an appeal against a judgment of Federal Magistrate Cameron delivered on 16 June 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal's decision was delivered on 11 October 2007 and affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

BACKGROUND - SUMMARY OF FACTS 2 The appellant is a citizen of India who arrived in Australia on a temporary resident's visa on 11 May 2007. She lodged her application for a protection visa on the day her entry visa expired, 14 May 2007. A delegate of the first respondent refused that application on 29 May 2007. The appellant then applied to the Tribunal for a review of that decision on 20 June 2007. 3 The appellant lodged a short statement with her protection visa application which sought more time to explain her claims to fear persecution in India and shortly stated that her 'family circumstances are very bad because of some critical problems' and that if she returned to her country she 'will be killed by [her] enemies'. Simultaneously with the delegate's decision being published, the appellant submitted a more detailed statement of her claims and some news articles on Kerala through her solicitor. As the delegate refused the appellant's application, she re-submitted this more detailed statement with her application for review to the Tribunal. 4 This more detailed statement has been well summarised by both the Tribunal (at pages 4 to 8 of its Decision Record), and the Federal Magistrate, (at to (u) of his Honour's reasons). The salient points of those summaries are as follows: · The appellant claimed to have been targeted due to her Christianity and to have come to the adverse attention of both religious fundamentalists and the local authorities due to her altruistic work; · The appellant and her family were from a lower caste, and their work was orientated towards others from this social group and particularly local fishermen; · In September 2006 the appellant was allegedly attacked by Muslims who told her that they would torch her house. She went into hiding and subsequently discovered that her house was wanted for development by a Muslim developer; · After the appellant returned to her home, she and her family were allegedly stalked, and the appellant herself was raped, so that they went back into hiding away from their home area. She claimed the police told her to return to her home area and to sell her house to appease the attackers. 5 At the hearing before the Tribunal the appellant confirmed that she did not wish to make any changes to her statement. However, on being asked about the reference in her statement to lower castes, the appellant apparently responded that she was 'not lower caste and that her problems with Muslims and Hindus relate to her Christianity'. She then went on to make claims about being scratched by Muslim men on occasions when she wore a dress, about being harassed by the Muslim developer who wished to purchase her house after her refusal to sell it in 2006, about being raped by the same people at the end of 2006, and about being beaten, abducted to the seaside and having her earrings ripped out in the first month of 2007. Later in the hearing, the appellant added a claim that the same people had beaten and stabbed her at an unspecified time in 2005 and that they were connected to the Rashtriya Swayamsevak Sangh ('RSS') party and the Communist Party of India (Marxist) ('CPI(M)'). 6 The Decision Record of the Tribunal records that it put to the appellant: (a) that even if it accepted that she had suffered the harm claimed, the appellant would need to show the harm was associated with a Convention reason rather than commercial reasons - the appellant apparently responded that the developers 'are troubling her daughter, son and husband' and she 'does not want to go back to India'; (b) that her claims mirrored those in another matter before it - the appellant apparently responded that she had 'only discussed her claims with her migration agent'; (c) that she could not be certain that the people who mistreated her relatives were associated with the RSS and CPI(M) political parties - the appellant apparently responded that 'they are the type of people who would do this sort of thing' and 'nobody else would'; (d) that her husband's beating and subsequent cognitive problems, which she claimed had occurred at the hands of Muslims and Hindus in 2002, could have happened for a number of reasons - the appellant apparently agreed that she did not herself know why the beating had happened.

THE TRIBUNAL'S DECISION 7 At the commencement of the Tribunal's 'Findings and Reasons' section of its Decision Record, it noted that it had not 'used in an adverse manner to the [appellant] any of the inconsistencies between the written claims and oral evidence' or the 'information before the Tribunal about another case with similar claims'. The Tribunal went on to record that it accepted that the appellant had never suffered harm on the basis of her being a member of a lower caste (as she had said she was not), nor on the basis of political activities or connections (as she had said that no member of her family had ever been involved with any political group). 8 However, the Tribunal did not accept the claims that the appellant did make. It found that the appellant's answers about her claimed incidents of harm were vague and insufficiently detailed. The Tribunal recorded that: 'Whilst the Tribunal is prepared to give the [appellant] the benefit of the doubt and accepts as plausible that the developer wanted to buy her property and that she refused, given the lack of details and generality of the responses, the Tribunal is not satisfied that the developer ill-treated her as described; for those reasons and in consideration of the evidence as a whole, the Tribunal is not satisfied that the developer ever physically or sexually assaulted the [appellant], or that she reported any incidents to the police, or that the developer bribed the police or that the police did not entertain the complaint, or that the developer had been targeting her daughter, or that the developer is troubling her daughter, son or husband'. 9 In relation to the harm suffered by her husband, the Tribunal found that even if it were satisfied about the veracity of that claim, it could not be satisfied that the harm was 'essentially and significantly related to a Convention ground, including but not limited to, religion'. Similarly, the Tribunal was unpersuaded that the developer was interested in her property for any religious or political reason. The Tribunal recorded again that '[i]n consideration of the evidence as a whole', it was not satisfied that the appellant would face persecution for any Convention-related reason on her return to India, and it therefore affirmed the delegate's decision.

THE FEDERAL MAGISTRATE'S DECISION 10 The appellant filed an amended application for review in the Federal Magistrates Court on 7 January 2008, which raised the following grounds: 1. [T]he decision of the Refugee review Tribunal was effected by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or 'integers' central to the applicant's claims; 2. The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction; Particular of Grounds (a) The tribunal did not consider the applicant who had been under immense and intimidating pressure from RSS and BJP members because of her involvement with church and were accusing her converting Hindus to Christianity. (b) In relation to above the Tribunal did not consider the applicant's claim that RSS and BJP members will kill her if she returns to India. 3. The Tribunal exceeds is jurisdictional[sic] or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of the Migration Act 1958; 4. The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final out come. The Tribunal used the all[sic] information for matter of reasoning and evaluation of my case for protection visa. 5. The Tribunal applied the wrong test. The Tribunal left out individual elements of the applicant's claims and tested weather[sic] they individually amounted to persecution rather than look at the claim as a whole determine whether the claim so considered amounted to persecution; 6. The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in fact, placing to[sic] high an onus of proof an[sic] the applicant and failing to give the applicant the benefit of the doubt. 7. The Tribunal failed to ask a question that it was, in the circumstances of this case, legally required to ask. Particular: (a) Whether the Indian authorities provided a standard of protection comparable to international standards. 11 Federal Magistrate Cameron considered each of the appellant's grounds consecutively. In relation to the first and second grounds his Honour held that the Tribunal had considered the issue of 'BJP' and 'RSS' pressure, but that the appellant had not ever specified that members of either of those groups would kill her, so that both parts of the claim lacked a factual basis. 12 In relation to the 'failure to investigate claim', his Honour held that the Tribunal was not under any obligation to investigate the appellant's claims: citing Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12, Re Ruddock: Ex parte Applicant S154/2002 (2003) 201 ALR 437 and S1925 of 2003 v Minister for Immigration and Citizenship [2008] FCA 246. 13 Turning to the next ground, regarding the country information, his Honour held that 'the Tribunal is entitled to have regard to whichever information it considers credible and to give such weight to the information which is before it' as it deems appropriate. 14 His Honour then discussed the test applied by the Tribunal to the appellant's claims, and noted several passages in the Tribunal's Decision Record where it considered the appellant's evidence and claims individually and as a whole and determined that it was clear that the Tribunal had engaged in both a specific and a general appraisal of the appellant's claims. In relation to the allegation the Tribunal placed too high an onus on the appellant, his Honour was satisfied that there was nothing in the Decision Record to suggest that the Tribunal had done so, rather he observed that the appellant's 'claim was unsuccessful because it was unconvincing, not because it was uncorroborated'. Federal Magistrate Cameron acknowledged that an appellant's credibility should not be impugned because of problems with peripheral details (in line with Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547), but stated that, here, the impugning of the appellant's credibility rested on more than minor matters. 15 Addressing the final ground raised by the appellant, the Federal Magistrate held that the Tribunal was not required to ask 'whether the Indian authorities provided a standard of protection comparable with international standards'. Rather, the Tribunal was required to determine whether there were circumstances which made the alleged persecution 'official, or officially tolerated or uncontrollable by the authorities' as per Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 233, adopted in Minister for Immigration and Citizenship v Respondents S152/2003 (2004) 222 CLR 1; [2004] HCA 18 at [20]. In any case, given that the Tribunal had not accepted the appellant's claims of persecution, it was not required to consider the level of state protection available in India. 16 Having rejected all of the grounds for review, his Honour dismissed the application for want of jurisdictional error.

GROUNDS OF THE PRESENT APPEAL 17 The appellant filed a notice of appeal in this Court on 27 June 2008, which set out three grounds of appeal: 1. Jurisdictional error; 2. Breached[sic] of procedural fairness; 3. Breached[sic] of natural justice; The notice of appeal contained a note to the effect that an amended notice of appeal would be filed once the appellant received a copy of the Federal Magistrate's written reasons. No amended notice of appeal was filed by the appellant.

THE CONTENTIONS 18 At the hearing of the appeal before me on 11 September 2008, the appellant appeared in person, unrepresented, but assisted by an interpreter. Mr Reynolds appeared for the first respondent. 19 In her oral submissions, the appellant claimed that the Tribunal had made her case difficult because it did not listen to her and it did not consider her claim that the developer who attempted to take her land did so because of religious reasons. 20 Mr Reynolds essentially relied upon the outline of written submissions that had earlier been filed on behalf of the first respondent. That outline of submissions may be summarised as follows: (a) The bare assertion of jurisdictional error in ground one has not been particularised; (b) To the extent that the appellant seeks to re-agitate the matters raised before the Federal Magistrate, no error has been identified by the appellant in the Federal Magistrate's reasons and none is present; (c) In so far as ground three may be alleging a failure to investigate the appellant's claims, the Federal Magistrate correctly applied the authorities to the effect that the Tribunal was under no general duty to make enquiries; (d) Grounds two and three have not been particularised, but they appear to raise issues that were not raised before the Federal Magistrate. If so, the appellant should not be granted leave to raise these matters for the first time in this appeal because they do not have sufficient merit such that it is in the interests of justice to grant leave to raise them; (e) In any event, it is clear that the Tribunal complied with its obligations under the Act to invite the appellant to a hearing, which she attended, and to give her notice of any issues that might be dispositive of her application for review. 21 In his oral submissions, Mr Reynolds submitted that the Tribunal had rejected the appellant's claims on two independent bases. First, it rejected her claimed incidents of harm because it did not believe them and, second, it found that the motivation of the developer to take over her land was commercial and was not associated with either religious or political reasons. Mr Reynolds submitted that even if the appellant were able to upset the latter, (which he submitted she could not do in the absence of jurisdictional error), she certainly could not upset the former because it involved a finding of credibility which is quintessentially a matter for the Tribunal.

CONSIDERATION 22 As Mr Reynolds points out, none of the three grounds of appeal is particularised making it impossible to know what aspect, if any, of the Federal Magistrate's decision the appellant is claiming to be affected by error. The only such matter that the appellant raised in her oral submissions before me was her complaint that the Tribunal did not consider her claim that the developer had attempted to take her land because of religious reasons. In my view, it is quite clear from the Tribunal's Decision Record that it rejected all her claims because it did not believe her. It did so because she was evasive and because it considered her claims variously: lacked detail; were not persuasive; were of doubtful veracity. Furthermore, apart from rejecting her claims of ill-treatment from the developer, the Tribunal found, based on the appellant's evidence, that the developer was motivated to take over her land by commercial reasons and he was not motivated by religious or political reasons. These findings were clearly open to the Tribunal on the evidence before it. That being so, they fall squarely within the fact finding jurisdiction of the Tribunal. It follows that the Tribunal did not commit any jurisdictional error in reaching those conclusions. 23 Since the Tribunal did not commit any jurisdictional error, the Federal Magistrate could not have committed any error in rejecting the appellant's application for judicial review. It follows that none of the appellant's un-particularised grounds of appeal has any merit and insofar as the appellant is attempting to raise grounds two and three for the first time before this Court, I refuse to grant her leave to do so.

CONCLUSION 24 For these reasons, I order that this appeal be dismissed. I will hear the parties on the question of costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate: Dated: 12 September 2008 Appellant: In person

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