SZNOC & Anor v Minister for Immigration & Anor [2009] FMCA 1217

1. This is an application for review of a decision of the Refugee Review Tribunal dated 7 April 2009 affirming a decision of the delegate of the first respondent not to grant the applicants' protection visas. The applicants are a married couple from India who arrived in Australia in March 2008 and applied for protection visas. They attended separate interviews with the delegate. The delegate refused the applications. The applicants sought review by the Tribunal.
2. The Tribunal affirmed the decision of the delegate. The applicants sought review in these proceedings. They rely on an amended application filed on 29 July 2009.
3. The applicants each made claims in statutory declarations provided in connection with their protection visa applications. In essence, they claimed to be Latin Catholics and members of the Mukkuva caste from Kerala in India and to fear persecution on the basis of their religious belief and caste membership.
4. The applicant wife, who was the first applicant, claimed that she was an "active member of Trivandrum Social Service Society" (the TSSS) and that in that role she assisted women and children to overcome social discrimination and barriers. She claimed that in about 1998, she and 15 other active members were assaulted by the Kerala police during a public rally organised to stop domestic violence. She claimed that while they had filed a case it had been withdrawn by the bishop in accordance with government demands.
5. The applicants both claimed that on 9 June 2002 members of a Hindu extremist group, the RSS, came to their home, accused them of stopping fundraising activities, not respecting "Hindu/cultural traditional values" and suggested that their "people were forcibly changing Hindus to Christianity". They claimed that the applicant husband was stabbed, that the applicant wife was also assaulted and that they were hospitalised for some nine days.
6. They claimed they reported a named RSS local group leader to the police and that the police filed a case against this person. However they claimed that when they went to court in connection with this case, RSS members warned them to withdraw the case and that on 1 May 2007 the RSS group and its leader threatened the applicants that they should withdraw the case or they would be killed. Further, they claimed that after they gave evidence in December 2007 that "the local leader said in front of the police, that he would kill [them] for ignoring his demand".
7. The applicants claimed they decided to leave Kerala and that while they reported the incident to the police and government the response was inadequate. They also claimed that they could not relocate outside Kerala.
8. The applicants each elaborated on their claims in separate interviews with the delegate and at two Tribunal hearings.
9. In its reasons for decision the Tribunal recorded in some detail the evidence of the applicants at the first hearing on 9 September 2008 and the fact that it wrote to the applicants under s.424A of the Migration Act 1958 (Cth) (the Act) on 24 September 2008 seeking their comment on specified country information by 17 October 2008.
10. On 17 October 2008 the applicants sought an additional 28 days "in order to obtain some supporting documents". The Tribunal responded on 23 October 2008, indicating that it had "decided not to grant an extension of time". By letter of 31 October 2008, the applicant wife requested that the Tribunal defer making a decision until she forwarded "additional documents with [her] comment on the information in your letter dated 24 September 2008". The applicants subsequently provided additional information to the Tribunal in support of their claims.
11. On 11 November 2008, the Tribunal wrote to the applicants care of their migration agent/solicitor, inviting them to provide additional information in relation to the police station where they claimed a case had been filed against the RSS leader, the address of the court and the number of the court file. The Tribunal recorded that it did not receive a reply to this letter.
12. On 12 January 2009 the Tribunal again wrote to the applicants under s.424A of the Act, putting to them information it had obtained from persons in India through the Department of Foreign Affairs and Trade in relation to aspects of their claims and the supporting documentation, which was said to suggest that they had provided "incorrect information" and "false documents to the Tribunal and to the Department" and that they were "not witnesses of truth". The letter sought a response by 4 February 2009.
13. On 2 February 2009 the applicant wife wrote to the Tribunal seeking an additional 14 days to provide comments on the basis that she needed to "obtain supporting documents from India". On 3 February 2009 the Tribunal advised that it had considered the request, but had decided not to grant an extension of time. On 13 February 2009 the applicants provided comments in response to the letter of 12 January 2009, attaching some additional information apparently obtained from India.
14. On 27 February 2009 the Tribunal invited the applicants to attend a further hearing. The applicants provided the Tribunal with a copy of a psychological report obtained in relation to the applicant wife from the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) as well as another document from India. They attended the second Tribunal hearing on 30 March 2009.
15. In its reasons for decision the Tribunal also set out the evidence given by the applicants at that hearing. The Tribunal reasons for decision are the only evidence before the court in relation to what occurred at the Tribunal hearings.
16. In its findings and reasons the Tribunal accepted that the applicants were Latin Catholics from the town they claim to have come from in Kerala and members of the Mukkuva caste.
17. In relation to claims based on caste membership made by the applicants and also by a relative who had provided a supporting letter, the Tribunal found that there was no evidence of recent incidents of harm or discrimination against members of that caste in the applicants' area of India.
18. The Tribunal also considered the situation of the applicants, as Latin Catholic Christians from the Mukkuva caste and the "other backward community" (OBC), if they were to return to India. It found on the basis of independent country information that "the Indian state has put in place reasonable measures to protect the lives and safety of its citizens, including an appropriate criminal law, and the provision of a reasonably effective and impartial police force and judicial system".
19. The Tribunal was not satisfied that the legal system discriminated against the poor and found that "if threats or attacks were to be perpetrated ... for any Convention related reason, there [wa]s a functioning police force and an independent judicial system". The Tribunal had "no independent evidence...to support the applicants' claims that they or their family would not obtain state protection in India or that such protection would be denied or withheld to OBC Mukkar caste Latin Catholic Christians from Kerala".
20. In relation to the applicants' claims based on their religion, the Tribunal referred to independent information about the extent of membership of the Christian Catholic or Latin Catholic community in the part of India from which the applicants came and the absence of any recent reports of attacks on Catholic fishing communities or Christian fishing communities generally. It had regard to country information in relation to the involvement of organisations such as the RSS in incidents of violence and discrimination against Christians and Muslims, but also to information as to the view of the Latin Catholic archdiocese for the area that State governments continued to "attach a high priority to maintaining law and order".
21. While the Tribunal accepted that the RSS was an "organization that espouse[d] a return to Hindu values and cultural norms, it found no information before it to suggest that the RSS attacked persons who organised or held church fetes" in the applicants' town or to suggest that they attacked Latin Catholics in that area "for practicing their faith". Nor did the independent evidence suggest that the RSS attacked or harmed Christians who lived in Hindu-dominated areas. The Tribunal was of the view that if either of these possibilities was the situation, there would be some mention in the independent sources to which it referred.
22. The Tribunal also found that the information before it did not suggest that any Latin Catholics were harmed by the RSS, or threatened by the RSS or any other political group, during a festival in November 2007, or generally that in that area Latin Catholics suffered discrimination for their religion.
23. The Tribunal addressed the fact that the applicant claimed that she had been receiving counselling from Australian Red Cross for trauma as follows:
    • The applicant has claimed that she has been receiving Counselling from the Australian Red Cross for trauma. The applicant submitted a report from a STARTTS psychologist dated 23 July 2008. The diagnosis of the psychologist was based on information provided by the applicant. The psychologist accepted everything that the applicant told her about what had happened to her in India. The psychologist did not consider that the applicant's claims may not be true. The psychologist did not indicate in the report when the applicant's symptoms commenced or whether the applicant has had any treatment or whether the applicant's condition was long term. Whilst the report stated that the applicant's condition had a significant impact on her functioning it does not describe what that 'significant impact' was. The report does not suggest that the applicant requires treatment. The report does not suggest that the psychologist saw the applicant on more than one occasion. Therefore, I place no weight on this report.
    • As I place no weight on the STARTTS report daed (sic) 23 July 2008, I am not satisfied that the applicant is receiving ongoing counselling from any organisation or that the applicant has any medical condition that suggests she is unable to recall events or that she confuses dates and places.
24. The Tribunal did not accept that the applicants were witnesses of truth, being satisfied that they had "created their claims in order to obtain the visas sought". In this regard the Tribunal addressed specific aspects of the applicants' claims and its concerns in particular respects. For example, it referred to the fact that in their protection visa applications the applicants had claimed that the wife had been injured by police in a demonstration about domestic violence issues in about 1998 while a member of the TSSS, whereas in response to the second s.424A letter they had claimed that the injury occurred in 1999 and produced a newspaper report said to be about the claimed incident which, however, described an incident where pro-prohibition church activists had attacked a hall to disrupt an auction of liquor shops. The Tribunal recorded that when it put the inconsistency in these claims to the applicants at the second hearing the applicant wife "stated that this inconsistency was caused by her medical condition". The Tribunal rejected this explanation, finding that it had "no medical evidence" before it to suggest that at the time of the application the wife "suffered from any medical condition that affected her ability to recall events". In any event, the Tribunal had regard to the fact that, even if it accepted that the applicant wife had been suffering from such an illness, both the applicant wife and her husband had claimed in their protection visa applications that the wife was "injured in 1998 in a demonstration about domestic violence issues".
25. The Tribunal was satisfied that the claim of harm in 1999 was a "late invention" to support their claims. It found that the applicant wife was not injured in 1998 or 1999 during a demonstration, hospitalised or harmed at the hands of the police.
26. The applicant husband also claimed that he was secretary of a particular Church in their home area in 1982. The Tribunal accepted that this was the case, notwithstanding that it seemed that initially the claim had been that he was secretary in 2002, a claim that the Tribunal did not accept as it had information from India before it indicating that in 2002 another person was the secretary. In response to a s.424A letter on this issue, the applicant wife had acknowledged that the applicant husband was the secretary in 1982. The Tribunal had regard to the fact that the husband did not suggest that he suffered any harm in 1982 for holding this position and was satisfied that the husband was not the secretary of the church in 2002 (the time at which it was claimed he was attacked by RSS men at his home).
27. The Tribunal also addressed the claims in supporting letters from the applicant wife's sister and an advocate in India that the husband was attacked by RSS men on 20 November 2001. It had regard to the fact that the applicants had not claimed that there had been an attack on that date and that when it was put to them (at the second hearing) that they had not made this claim, they had responded that the applicant husband was secretary for a festival in November 2007 and was harmed in November 2007. This explanation was rejected on the basis that had the husband been harmed in November 2007 "some mention would have been made" of this in the protection visa application or at the first hearing.
28. The Tribunal accepted that the applicant husband had suffered a physical injury to his arm and shoulder in India. However it was not satisfied that the injuries occurred in the manner claimed as a result of an attack on him on 20 June 2002 by RSS members. In reaching that conclusion it had regard to the fact that while the applicant had submitted a medical report from a Dr Raymond Morris in relation to this claim, when an inquiry was made of that doctor by the Department of Foreign Affairs and Trade, he stated that he had not issued such a medical certificate and advised that it was a forgery. The applicants had not been able to provide an explanation for this, other than to state that someone else had obtained the medical report. The Tribunal found that the medical certificate was not genuine and that the husband was not injured by an attack by the RSS on 9 June 2002 for his religion or imputed religion or for any other Convention reason.
29. Hence the Tribunal did not accept the claims about the applicants' fears after June 2002. It did not accept that a named RSS member or any other RSS persons had attacked and injured the applicants, or that they had attended court in relation to legal proceeding initiated by the police against their attacker. It did not accept that the applicants were threatened by the RSS that they would be killed, or that they were threatened in front of the police, that police investigations were lethargic, or that the police were unable or unwilling to assist them.
30. The Tribunal did accept that the RSS might attack persons who actively attempted to convert Hindus to Christianity, but found that the evidence did not suggest that the applicants were making such active attempts. It did not accept the claim that the RSS considered that the applicants were implicitly acting against Hindu values.
31. The Tribunal considered a number of other items of evidence or information provided in support of the applicant's claims. In particular, in relation to the claimed attack in 2002, it referred to a supporting letter from an advocate in India stating that a particular numbered case had been filed in a particular court. However the Tribunal recorded that when it sought additional information in a s.424 letter as to the exact location of the police station and details of the court, no relevant response was received from the applicants. When this was raised at the second hearing, the applicant wife had claimed that their migration agent had not given them the s.424 letter. However she subsequently resiled from this claim and the husband indicated that they wished to withdraw this allegation.
32. The Tribunal found that no information that was able to verified independently had been provided by the applicants about their court case, and that they were not harmed in June 2002 and accordingly rejected their claims that a particular person was charged for harming them and that he and RSS supporters had attempted to hurt, threaten or harm them, and that the police refused to assist.
33. The Tribunal also referred to the supporting letter from the advocate certifying that the husband was attacked by RSS men on 20 November 2001 as well as on 9 June 2002. However as the applicants did not claim the husband was attacked on 20 November 2001 and Dr Morris had informed them that he had advised that he did not issue the medical report about 9 June 2002 and as it was satisfied that the applicants were not injured in 2002 as claimed and that they were not witnesses of truth, it placed no weight on this letter.
34. Similarly, the Tribunal placed no weight on a letter of 1 November 2008 from the President of the Latheen Katholikka Aikya Vedi organisation attesting to the applicants being under "continuous threat" following attempts on their lives from 2001 by the RSS, as the applicants did not claim that the husband was attacked in November 2001 and it was satisfied that the applicants were not witnesses of truth.
35. The Tribunal also considered a supporting letter of 23 October 2008 from the applicant wife's sister. While it accepted there was information about attacks involving Latin Catholics, it found that even accepting that attacks prior to 1998 had occurred as claimed, the independent evidence did not suggest that in the last decade there had been attacks on Latin Catholics by the RSS in the applicants' area of India. The Tribunal placed no weight on the claim about an attack on the husband on 20 November 2001 as no such claim had been made by the applicants. It did not accept the applicants' claims about attack in June 2002 and thereafter, it rejected the attempted corroborative statement by the sister in relation to this issue. As it did not accept that the applicants were witnesses of truth it rejected any corroborative evidence from the sister.
36. The Tribunal considered information and articles provided by the applicants, but preferred independent country information before it. It was not satisfied that the information provided supported the applicants' claims as contended. It was not satisfied "that Latin Christian Catholics or Mukkar caste persons suffer[ed] discrimination by the legal system". The Tribunal was satisfied on the independent information before it that Christians were able to worship freely in Kerala, particularly in the applicants' home area, and that they received the protection of the authorities who arrested and charged RSS persons responsible for attacks on Christians. The Tribunal was satisfied on this basis that the applicants' claims that harm by the RSS and subsequent threats caused them to move home and that they lacked police protection after subsequent threats were implausible.
37. The Tribunal referred to the fact that there was an issue as to whether or not the applicant wife had been a member of the TSSS, in light of information from the director of that organisation that the only person in the organisation with her surname was another person. The Tribunal found that even giving the applicant the benefit of the doubt and accepting that she belonged to the TSSS, it was not satisfied she was harmed in 1999 or 1998. It did not accept that she suffered any harm in India for such membership. The Tribunal found no information to suggest that the RSS targeted members of the TSSS for their imputed religion, membership of the particular social group of TSSS members or for any other reason.
38. The Tribunal was not satisfied that the applicant wife had suffered discrimination in education, or that she and her husband had suffered discrimination in employment.
39. The Tribunal concluded that it was not satisfied that the applicants had suffered Convention-related harm in India or that they fled India fearing Convention-related harm.
40. As indicated above, the Tribunal considered what the situation would be if the applicants as Latin Catholic Christians from the Mukkuva caste and OBC returned to India, but, for the reasons it gave, was not satisfied that the harms complained of gave rise to a real chance of persecution now or in the reasonably foreseeable future. It affirmed the decision of the delegate.
41. The ground relied on in the amended application, which is repeated in the applicants' written submission, is as follows:
    • The RRT did not believe my problems in India although I gave all evidence to prove it. The RRT did not give any weight to the situation against to me in India. I gave explanation for the RRT's doubts and discrepancies in my evidence. No weight given to the STARTTS report given by me to the RRT. I have attached a number of documents recently received documents to support my case. The RRT said that there was no court case to my husband in the [named] Court but the enclosed papers confirms that my husband has a case and he got a medical certificate in relation to that case. A RSS supporter [named] prepared a report against my husband therefore he did not state my husband's case was against to the RSS...
42. The applicant stated that original documents would be submitted in the hearing. There are a number of aspects to the claims made in the amended application. First the applicants take issue with the fact that the Tribunal did not believe their claims about what occurred in India, although they "gave all evidence to prove it." Insofar as the applicants take issue with the Tribunal's fact finding or its findings in relation to their credibility, fact finding and credibility findings are matters for the Tribunal (Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195 at [36], Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405, [2000] HCA 1). The Tribunal findings were open to it on the material before it for the reasons that it gave. Insofar as it may be intended to submit that the Tribunal did not consider evidence submitted by the applicants, on the contrary, it is apparent from the Tribunal's reasons for decision that it considered the applicants' claims and also their supporting documentation, but for the reasons it gave did not accept the claims and did not accept that the supporting documentation established or supported the claims. It engaged in the necessary consideration of the claimed corroborative material (SZDGC v Minister for Immigration and Citizenship and Another (2008) 105 ALD 25; [2008] FCA 1638).
43. The applicants also contended that the Tribunal did not give any weight to the situation against them in India. Insofar as this takes issue with the Tribunal's approach to independent country information, the choice and weight to be given to items of independent country information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; NARD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 27 at [13]). The Tribunal had regard to information and articles and reports provided by the applicants, but also to other independent country information. It has not been established that it erred in the manner in which it assessed such information.
44. The applicants contended that they gave an explanation for the Tribunal's doubts and discrepancies in the evidence. However the Tribunal gave detailed reasons why it did not believe the applicants' evidence and did not accept their explanations for discrepancies in their evidence. It has not been suggested, and nor is it apparent, that the Tribunal failed to address any integer of the applicants' claims. The fact that the Tribunal did not accept the applicants' explanations does not establish jurisdictional error.
45. The amended application contended generally that no "weight" was given to the STARTTS report. Insofar as it is contended that the Tribunal failed to consider the STARTTS report, on the contrary, it is apparent from the Tribunal reasons for decision that it did give consideration to the report but determined, for the reasons that it gave, not to place weight on this report. In so doing the Tribunal identified various shortcomings or limitations in that report and explained why it declined to place any weight on it. It considered the report both in relation to whether it supported the applicant wife's claims that she had been receiving counselling from the Red Cross for trauma and also in relation to whether she was unable to recall events or confused dates and places as she claimed, relevant to her ability to participate in the hearing. I note that insofar as the report might otherwise be said to be before the Tribunal in relation to the applicant wife's fitness to participate in the hearing, the report only addressed the fact that the applicant wife was unable to perform paid employment at that time and that she was in need of whatever financial assistance could be provided.
46. The Tribunal had regard to what the report covered, but, as it pointed out, found that there was no indication as to when the applicant wife's symptoms commenced, whether she had had any treatment, or whether the condition was long term. While the report of 23 July 2008 stated that the applicant's condition had a "significant impact on many areas of her functioning", the Tribunal also had regard to the fact that it did not describe what that significant impact was or suggest that the applicant required treatment or that the psychologist saw the applicant on more than one occasion.
47. On the evidence before it, it was open to the Tribunal not to be satisfied that the applicant was receiving ongoing counselling from any organisation, or (relevant to her fitness to participate in hearings) that she had any medical condition that suggested that she was unable to recall events, or that she confused dates and places, as she had claimed in explanation for a particular inconsistency.
48. In SZKHD v Minister for Immigration and Citizenship [2008] FCA 112, Collier J found that for the Tribunal in that case to accept a psychologist's diagnostic formulation in a detailed report which included a lengthy history, but simultaneously to reject the factual basis for those formulations constituted a failure by the Tribunal to give proper consideration to the evidence. However this is not such a case. The report is not of the nature considered in SZKHD. It did not set out a detailed factual history which might support some of the specific claims made by the applicant wife in relation to what occurred to her in India. Rather, it simply recorded that during the assessment the applicant briefly described religious persecution and severe trauma that she and her husband experienced in India. The Tribunal noted that the intern psychologist did not consider whether the applicant wife's claims may not be true and accepted everything that the applicant wife told her about what had happened to her in India (which was not detailed in the report).
49. In all the circumstances, it has not been established that the Tribunal erred in determining not to give any weight to the STARTTS report.
50. The amended application also referred to the fact that the applicants had attached to the amended application a number of recently received documents to support their case. This was said to establish that there was a court case involving the applicant husband. However the applicants confirmed in the hearing today that these documents were not before the Tribunal at the time of its decision. They are therefore not of assistance in determining whether the Tribunal fell into jurisdictional error at the time of its decision on the material before it.
51. It was suggested in oral submissions that the applicants' concern was that they were not given additional time to provide further documents and that these were the documents that they would have provided had they been given additional time. When asked to clarify this concern, the applicants took particular issue with the Tribunal's refusal to give them additional time to respond to the second s.424A letter.
52. The applicants' request for such additional time was dated 2 February 2009. While the Tribunal refused that request, in its reason for decision it in fact took into account the applicants' late comments and also the additional information provided outside the time specified. Moreover the Tribunal subsequently invited the applicants to a further hearing to give evidence and present arguments relating to the issues arising in their case. In the hearing invitation letter of 27 February 2009 the Tribunal advised the applicants to provide any new information which they wish the Tribunal to consider. The applicants did provide some additional information prior to the second hearing which the Tribunal considered.
53. There is nothing in the Tribunal's account of the second hearing to indicate that the applicants sought additional time to provide further documents (including documents in relation to the complaint they claim they made to the police and the court case). The Tribunal recorded that it raised with the applicants the fact that it had not received a response to its request for additional information in this respect and that in response the applicants initially took issue with whether their migration agent had informed them of this letter, but that they subsequently withdrew that complaint. There is nothing in the material before the court to suggest that the applicants sought further time thereafter to provide additional information.
54. In all the circumstances the Tribunal's failure to allow additional time to the applicants to respond to either s.424A letter in circumstances where it in fact took into account their late responses and the additional information they provided and subsequently held a further hearing, giving them the opportunity to provide new information, does not establish jurisdictional error.
55. It particular it has not been established that the Tribunal fell into error by failing to allow the applicants more time in February 2009 to obtain supporting documents, when in 27 February 2009 it gave them a further opportunity to provide additional information and conducted a further hearing on 30 March 2009. No jurisdictional error has been established on the basis contended for by the applicant in relation to their requests for additional time to provide further documents.
56. As no jurisdictional error has been established on any of the bases contended for by the applicants, the application must be dismissed. I will hear submissions in relation to costs.
57. The applicants have been unsuccessful. The Minister seeks costs in the sum of $5,865, the scale amount provided for in the Federal Magistrates Court rules. The applicants were self-represented. The respondent's submissions were not prepared by counsel and are not unduly complex. While there is some factual complexity in terms of the number of interactions between the Tribunal and the applicants, I am not persuaded that in this case costs of the order sought are warranted (as distinct from a lesser amount akin to that which would normally be the case in situations where applicants are self-represented). Making due allowance as far as I can on the material before me for the factual complexity, I consider that an appropriate amount for costs is the sum of $4,500.
58. The applicant husband told the court that he could not afford to pay costs at the moment. However his lack of funds is not a reason for departing from the normal principle that the unsuccessful applicants should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Barnes FM