SZRMO v Minister for Immigration and Citizenship

Tribunal decision 11 On 10 April 2012, the appellants attended a Tribunal hearing with the assistance of an interpreter. The Tribunal decided to affirm the Delegate's decision on 16 April 2012 because it was not satisfied of the credibility of the appellants' account of being targeted by Muslims as a result of Mr Kader's unrequited love. 12 The Tribunal found that there was nothing in the information before it about manifestations of communal violence in the appellants' home city at the time of the wife's visit in May 2011 and her evidence was "notably confused" about it. The Tribunal was not satisfied that rioting took place. The Tribunal also found it difficult to accept that if a personal dispute between the wife's family and Mr Kader's family triggered communal rioting or other violence that this would not have been reported in the media if her father was a well-known member of the Hindu cultural society and Mr Kader was "famous", a "big lawyer" and well-connected at the mosque. The Tribunal found unconvincing the wife's suggested reasons for the lack of media attention (her father's prominence enabled him to suppress media comment and the police did not accept the complaint) and this cast doubt on the credibility of her claims and her evidence generally: at [60]-[62]. The Tribunal also doubted the credibility of her claims concerning the position held by Mr Kader, given his age and recent graduation as a lawyer, despite claims that his influence derived from his connections at the mosque. The Tribunal found the appellants' responses to questions about this and Mr Kader's connections with terrorists vague and uninformative: at [63]-[64]. 13 Notwithstanding that the Tribunal considered the information provided by the appellants as "vague and shifting" and unsupported by external evidence, the Tribunal was nevertheless willing to give the appellants the benefit of the doubt and accepted that Mr Kader did exist and did develop feelings for the wife. The Tribunal was not willing to accept that the relationship caused conflict between the families or respective communities and it rejected the specific instances of claimed harm or threats of harm to the appellants and their families. The Tribunal was reinforced in this view by the appellants' delay of one month in leaving India after they received their visas on 4 October 2011 and the fact that the wife returned to India in May 2011, which the Tribunal considered inconsistent with feared harm: at [65]-[66]. 14 The Tribunal found that there was not a real chance that if the appellants returned to India they would suffer serious harm from Mr Kader, his family or other Muslims because the wife refused to marry Mr Kader against her will. The Tribunal did not consider that there was a real chance that they would suffer serious harm as a result of communal violence in the city from which they came. The Tribunal was therefore not satisfied that the appellants were refugees or entitled to complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth): at [70]-[72].

the appeal 15 The appellants advanced the following grounds of appeal to this Court from the decision of the primary judge (grounds appear as written): 1. The Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction by rejecting the claims of the Applicant and her spouse in relation to the fear of persecution on the grounds of social group they belong to , the religion, the race and the failure on the part of the government authorities to settle the dispute between two rival religious groups leading to mass murder and riots. 2. The Federal Magistrate Court failed to accept the Tribunal's failure in rejecting the Applicant's claims by using excessive authority, by ignoring the relevant facts of the claims and failed to remit the matter back to the First Respondent to reconsider its decision not to grant the protection for the Applicant. 3. The Federal Magistrates Court and the Tribunal failed to accept that claims on the basis that the Applicants' problems with the Muslims were not published in the media and as such the claims could not have taken place. 4. The Federal Magistrate asserted the decision of the Tribunal and ignored the jurisdictional errors made by the Tribunal. The Federal Magistrate failed to accept the error made by the Tribunal in not accepting the Applicant's detailed knowledge of the Muslim friend who is the perpetrator who threatened to abduct the First Applicant to marry her the second time and also threatened to kill the Second Applicant. 16 The appellants were assisted by an interpreter at the hearing and provided no written submissions. The Minister's representative provided written submissions. 17 The Minister's primary submission was that these grounds were not raised in the Court below and it therefore could not be said that the primary judge had either failed to consider or accept these matters, or failed to find errors which are now differently alleged. 18 The appellants relied upon the following grounds of review in their application to the Federal Circuit Court (grounds appear as written): 1. The Second Respondent made a jurisdictional error by failing to consider both the Applicants' claims with regard to their fear of their life upon their return. 2. The Second Respondent failed to refer to any of the relevant news articles and information submitted by the Applicants and denied the applicant procedural fairness and thereby fell into jurisdictional error. 3. The Second Respondent fell into jurisdictional error by making a finding for which there was no evidence and by coming to a conclusion that was so illogical or irrational that no reasonable independent merits reviewer could have reached it. 4. The Second Respondent fell into jurisdictional error by failing to have regard to all relevant material. 19 The Minister further submitted that: (1) as the appellants provided no particulars of the grounds, it is difficult to respond to them meaningfully; and (2) to the extent that the grounds seek to cavil with the Tribunal's factual findings no jurisdictional error is disclosed and the grounds constitute an attempt to engage the Court in impermissible merits review.

First ground of appeal 20 At the hearing, the appellants submitted that the Tribunal did not consider whether there was a problem between Hindus and Muslims. The appellants did provide evidence of this conflict but after four years in Australia they were unable to provide evidence related directly to the appellants and Mr Kader. They were not aware that they had to provide that sort of evidence to the Tribunal. 21 The representative of the Minister suggested that this ground may seek to re-agitate the first ground for review by the Federal Circuit Court: that the Tribunal had failed to consider one of the appellants' claims. 22 The appellants' clearly articulated claim for protection was to fear harm from Mr Kader, his family and other Muslims occasioned by Mr Kader's unrequited love for the wife. The Tribunal summarised the bases of this claim at [57] of the Tribunal record, having previously set out a detailed summary of the wife's written statement which accompanied her visa application, the information provided at the interview with the Department and the evidence given at the Tribunal hearing. Although the husband did not make his own claim as a refugee in his visa application, the Tribunal accepted that the husband claimed to fear serious harm for the same reason as the wife: at [54]. 23 The Tribunal did accept that there was a history of tensions between Hindus and Muslims in the appellants' home region in India, including frequent violent incidents in their home city. However, the Tribunal was not satisfied that those incidents were connected with the appellants personally or that there was anything in their personal circumstances which would lead them to be targeted personally beyond the fact that they belong to the majority Hindu community. The Tribunal was also not satisfied that there was anything before it which supported the wife's assertion that violence is levelled at the children of well-to-do Hindus. The Tribunal therefore found that although country information did point to the existence of communal violence between Muslims and Hindus, it did not accept that there was more than a remote chance that the appellants would suffer serious harm in such violence: at [57]-[58] and [67]-[69]. 24 It is clear that the Tribunal did consider the appellants claims both as they were articulated and more broadly arising from communal violence between Muslims and Hindus. At [43] and [45] of SZRMO, the primary judge correctly noted that: (1) the Tribunal is only required to consider the claims advanced by the appellants or claims that clearly arise from the material before it and it is for the appellants to make out their case and to provide sufficient information for the Tribunal to reach the requisite level of satisfaction, (2) the Tribunal clearly set out in its decision record the appellants' claims, the evidence and material before it and its reasons for rejecting the claims, and (3) the Tribunal ultimately rejected the appellants' claims because it found that they were not credible, which is the role of the Tribunal par excellence. 25 I find no error in the reasoning of either the Tribunal or the primary judge. This ground must be rejected.

Second ground of appeal 26 At the hearing, the appellants explained this ground as a complaint that the primary judge supported the Tribunal's decision to reject the grant of the protection visas to which they were entitled. Without particulars, this is a simple complaint about the result in the Tribunal and the Court below and must be rejected.

Third ground of appeal 27 At the hearing, the appellants submitted that they provided to the Tribunal news articles which demonstrated many instances of communal violence, but the Tribunal erred by disbelieving their claims because they were not named in the articles. They say that there were many incidents which did not receive coverage. This is similar to ground two of the application to the primary judge. 28 The primary judge dealt with this issue, in my view correctly, at [63]-64] and [64]-[67] of SZRMO: [63] The first finding was (at [61] at CB 184): "… Given these aspects of the persons said to be at the centre of communal rioting and terrorist incidents in a major city such as Ahmedabad over a number of years, it would be reasonable to expect that at least some form of media coverage would be devoted to them. Such, however, was not the case according to the Applicants…" [64] This finding was part of [61] (at CB 184) of the Tribunal's decision record and was made in the context of the Tribunal finding that if a personal dispute had caused such rioting, then, in the circumstances, there would be some media coverage of the riots. However, the applicants submitted that this reasoning was illogical and irrational because the implication is that all terrorist incidents around the world should, reasonably be, published. The applicants submitted that the Tribunal rejected the claims of Kader's terrorist involvement because the applicants were unable to give details of Kader's terrorist connections, and what explanations were given, were ultimately rejected by the Tribunal. ... [66] In circumstances where "minds might differ" a finding cannot be said to be illogical or irrational (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] - [131] per Crennan and Bell JJ with whom Heydon J agreed at [78]. See also SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 ("SZOOR") at [58] per McKerracher J with whom Reeves J agreed with at [112]). [67] I agree with the Minister that the findings made by the Tribunal were open to it on the material and evidence before it, and for the reasons it gave. The Tribunal's reasons reveal a "logical or rational path of thought" and, also, were reasons made by a logical and rational mind (SZOOR). No jurisdictional error is revealed here. It appears in this ground, again, that the applicants are merely cavilling with the Tribunal's findings (Wu Shan Liang).

Fourth ground of the appeal 29 The appellants submitted that the Tribunal erred because it did not accept the wife's claim that Mr Kader is a Muslim who wanted to marry her. They submitted that it is easy, for instance by online research, to verify that Muslims do attack Hindu girls. The wife fears for her life and that her husband will be beaten. They are scared and need protection. 30 This ground cavils with the Tribunal's fact finding and ultimate decision. At [65] of the decision record, the Tribunal did give the appellants the benefit of the doubt and accepted that a person named Mohammed Kader does exist and that he was a law student who became friendly with the wife and that he may have developed feelings which went beyond friendship for her and it can be inferred that the Tribunal also accepted that Mr Kader is a Muslim. However, the Tribunal did not accept the appellants' claims beyond this because they did not find the appellants credible. These factual findings are matters for the Tribunal, and the decision record does not reveal that the Tribunal's reasons are infected with jurisdictional error because of irrationality, illogicality or the failure to consider the evidence before it. This ground must also be rejected.

Conclusion 31 As none of the grounds of appeal have been made out, the appeal should be dismissed and the appellants should pay the costs of the first respondent as agreed, or failing agreement, as assessed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.