FEDERAL COURT OF AUSTRALIA

SZNZH v Minister for Immigration and Citizenship [2010] FCA 1286

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal, as agreed or taxed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1                     By a notice of appeal dated 8 September 2010, the appellant, SZNZH, appeals from the decision of Federal Magistrate Lloyd Jones given on 20 August 2010.  The Federal Magistrate dismissed with costs the appellant’s application for review of the decision of the Refugee Review Tribunal (“Tribunal”) made on 23 September 2009, to affirm the decision of the delegate of the second respondent, the Minister for Immigration and Citizenship (“the Minister”), not to grant the appellant a Protection Visa.

2                     The appellant claimed that he was a citizen of India from the state of Kerala, who feared persecution as a member of a lower caste within the “Other Backward Castes” (“OBC”).  The appellant claimed that he and his family had experienced discrimination in their education and employment, and that he had been threatened and beaten by members of higher castes and detained on the basis of their false evidence.  The appellant claimed that he had been prevented from building a house on his family’s land by his upper-caste neighbours.

3                     The appellant appeals on the following grounds:

1.  The Hon. FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claims and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act.  The Tribunal failed to observe this obligation amounted to a breach of a Statutory Obligation.

2.  The Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.

4                     The appellant seeks the following orders:

1.  To set aside the judgment of the Federal Magistrate dated 20 August 2010.

2.  To remit the matter to the Refugee Review Tribunal to determine according to law.

3.  An order of cost.  And any further order that this honourable court may deem appropriate.

5                     At the hearing of the appeal, the appellant appeared in person, assisted by an English/Malayalam interpreter.

Appellant’s letter in support of a protection visa

6                     In his letter dated 16 April 2009, the appellant stated that his job applications to Government departments had been rejected or delayed due to caste discrimination.  His wife had a BA-Bed, HDS (Banking), MA (English) and had passed a set examination for secondary school teaching.  Her attempts to secure a government job through the public service had, however, been in vain, due to upper caste discrimination tactics.  In 1993, his wife posed a cooperative bank test (exam) within the fifth rank list, but after a few months the family received anonymous threatening telephone calls and were the subject of false allegations by an upper caste group who complained to the police.  In October 1994, the appellant was taken into police custody without charge and beaten up for three days, suffering great pain and mental torture.  His wife’s job was terminated, despite her higher degrees.  The appellant underwent psychiatric treatment in Mumbai, fearing for his life and family.  The family’s court case against its adversaries was withdrawn due to “political interfere and life threats by the upper caste”.

7                     The appellant claimed that his wife had suffered career set backs due to caste discrimination and, although qualified as a secondary school teacher, since 1994 had worked as a lower primary school teacher despite “a Supreme Court verdict in our favour”.

8                     The appellant claimed that the family’s attempt to settle down was abandoned in 2002 due to threats to their lives and objections by an upper caste group, which prevented them from constructing a house.  They abandoned their land and continued to live in rented accommodation on the outskirts of the city.  After the appellant left India, his family had moved to Delhi due to caste discrimination, but his daughter’s education there was terminated, as she was from “the backward community”, in order to accommodate upper caste students.

The Delegate’s decision

9                     When interviewed by the delegate on 5 May 2008, the appellant stated that he had travelled to the Middle East and, from 1987, had worked in Dubai for 10 years until 1997.  Since 1997, he had worked in Bombay, Gujarat and Goa in hotels and hospitality.  He reiterated his complaints about his wife’s employment problems due to her caste.

10                  The appellant confirmed that he had been arrested on false allegations by upper caste people resulting in three days imprisonment in 1998.  He was not charged.

11                  The appellant stated that his wife had appealed to the Supreme Court.  He claimed that the upper caste would not allow his wife to build a house on her land.  The appellant stated that his family did not leave the area despite their problems, because the wife had a government job.

12                  By a decision made on 28 May 2009, the delegate decided not to grant the appellant a protection visa.

Tribunal hearing

13                  The appellant applied to the Tribunal for a review the delegate’s decision.

14                  On 19 August 2009, the appellant appeared before the Tribunal, assisted by a Malayalam interpreter, although he appeared to understand English well.

15                  The Tribunal indicated it had concerns with inconsistency in his evidence. It put to him that his testimony suggested he could not afford to go to university and that his non-attendance was not due to caste discrimination. It put to him that the documents in support of his application suggested he had made up the claims about caste discrimination in relation to preventing his wife from working as a secondary school teacher. The Tribunal put to the appellant that his claims about who had caused him trouble and harm were all general and non-specific.

16                  The Tribunal requested further information or comment on matters it put to the appellant, which would be (subject to his response) the reason, or part thereof, for affirming the decision under review.  The Tribunal adjourned the hearing to 2 September 2009.  The appellant, when asked whether he required additional time to comment or respond, indicated that he not require further time.  He nevertheless provided a substantial volume of documents in a letter dated 22 September 2009.

The Tribunal’s decision

17                  By its decision signed on 24 September 2009, the Tribunal affirmed the decision of the delegate refusing the appellant a protection visa.

18                  In its reasons for decision given on 24 September 2009, the Tribunal set out the relevant principles, and provisions of the Act, authorities and the elements of the definition of refugee in the Convention.

19                  The Tribunal observed that the appellant, who was born on 30 March 1963, could speak and write Malayalam and English, but required a Malayalam interpreter.  He was married in 1992 and had two children.  His religion was Hindu.  He had received 16 years of schooling in India at a Government High School in Kerala.  He held a pre‑degree in commerce at Nehru Arts & Science, a degree in cost accounting at Calicut University, and a diploma in cookery from the Food Craft Institute.

20                  The appellant left India on 5 April 2009 legally, travelling to Australia as a visitor with an Australian Class UC Visa.

21                  In its reasons, the Tribunal analysed the appellant’s letter dated 16 April 2009 in support of the application for a protection visa, which stated that he was born into a Hindu OBC family of lower caste, the appellant’s interview by the delegate on 5 May 2009, the documents provided and the delegate’s decision.

22                  The Tribunal set out an account of the hearing on 19 August 2009 including the appellant’s assertions and his interchange with the Tribunal when challenged in relation to a number of alleged inconsistencies and changes in his account.

23                  The Tribunal discussed the appellant’s claims and put a number of matters to him, including: the protection visa statement; the fact that his testimony did not suggest that he was denied tertiary education; independent country information indicating that there were quotas for OBC’s; the bank job claim; the family’s court action; the appellant’s movements since returning from Dubai; the family’s building dispute and independent country information indicating that the appellant’s Maniyani/Yadava caste was among the dominant castes at the top of the OBC hierarchy, which did not appear to support his claims. 

24                  In its reasons for decision, the Tribunal set out the appellant’s response to alleged inconsistencies in the evidence, which it had put to him during the hearing.  The Tribunal also set out extensive extracts from independent articles and studies on Other Backward Castes and the Yadava Caste in India and in Kerala, affirmative action programs in Kerala and independent information about fraudulent identity documents.

25                  The Tribunal concluded that:

Nonetheless, after the hearing the applicant provided documents which concern these matters. The Tribunal found the documents particularly helpful and consider that they place into context the applicant’s claims. The documents are copies of Court actions the applicant brought in the civil and criminal jurisdictions in 1995.  They show the applicant’s version of events at that time which may be concisely summarised:

·         In 1959 the applicant’s father was given a lease over farmland by the Nair family, who are in the Nair caste.

·         In 1964 the government enacted land reforms legislation which allowed the father to become the owner of the land. The applicant later inherited the land.

·         On 1 January 1995 the Nair family attempted to demolish a boundary wall separating the 2 properties, and the applicant prevented them from doing so.

·         On 3 January 1995 the applicant was accused of trespassing on the Nair’s land. The applicant responded that he had a right of easement to get to his land.

·         On 5 January 1995 the applicant began a civil action seeking a declaration of his ownership.

·         On 26 February 1995 the applicant was assaulted by 3 Nairs when he sought to get to his property. He claims the police did not investigate and he received hospital treatment.

·         On 27 February 1995 he began a criminal complaint against the 3 Nairs.

26                  The Tribunal accepted that the appellant was a member of the claimed caste, which was one of the “Other Backward Castes” listed by the Kerala Government.  It also accepted that the appellant was involved in a dispute with his neighbours.

27                  The Tribunal did not, however, accept that a Convention reason (caste discrimination) was the essential and significant reason for:

(a)        the appellant’s land dispute and the associated difficulties;

(b)        the wife’s loss of her bank job;

(c)        the appellant’s three day detention; and

(d)        the wife’s lack of success in her teaching career.

28                  Further, the Tribunal did not accept that the appellant or his daughter had been denied an education in India.  Nor did it accept that caste discrimination had led to the appellant losing, changing or being unable to hold employment.  The Tribunal also referred to the long delay between the relevant events and the appellant’s departure for Australia, which suggested that he did not have a fear of persecution in India at the time.

29                  The Tribunal concluded:

In sum, the Tribunal considered the evidence cumulatively and finds that the applicant has constructed a narrative largely around a land dispute and his wife’s employment setbacks, for the purposes of claiming refugee status.  The Tribunal does not accept that the applicant suffered persecution in India for a Convention reason or that he fled to India because of a fear of harm for a Convention reason.  The Tribunal finds he is able to return to Kerala in India and that there is not a real chance he will suffer harm for reasons of his caste or religion.  It follows that the Tribunal is not satisfied that the applicant has a well‑founded fear of persecution for one or more of the Convention reasons, now or in the reasonably foreseeable future, if he returns to India.  The Tribunal is not satisfied that the applicant is a refugee.

30                  The Tribunal found the appellant had constructed a narrative for the purposes of claiming refugee status and that there was no real chance he would face harm for a Convention reason if returned to Kerala.

31                  The Tribunal concluded:

The Tribunal found that the appellant was not a witness of truth and was satisfied that he had created his claims in order to obtain a Protection visa. The Tribunal did not accept that the appellant suffered persecution in India for a Convention related reason or that he fled India because of a fear of harm for a Convention reason. The Tribunal found that he is able to return to Kerala in India and that there is not a real chance he will suffer harm for reasons of his caste or religion.

Application to Federal Magistrates’ Court

32                  By an amended application for review filed on 5 February 2010, the appellant applied to the Federal Magistrates’ Court for a review of the Tribunal’s decision on the following grounds:

[4] At the First Court Date directions hearing, the Applicant was granted leave to file an Amended Application. The Applicant filed an Amended Application on 5 February 2010 and the grounds are as follows:

1. The Tribunal exceeds [its] jurisdictional 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.

2. The Tribunal member emphasised on some irrelevant question at the hearing and ignored my OBC background that put my life in danger. In doing so the Tribunal member have ignored relevant material and made finding which is erroneous or mistaken.

3. The Tribunal failed to properly apply the consideration that Applicant for refugee status ought to be given the benefit of the doubt in circumstance where the Tribunal entertained the possibility that the Applicant claims are plausible, which was the case here.

4. The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against Applicant claims in the final outcome. The Tribunal did not give to the Applicant before the hearing the information it had about OBC in India. The Tribunal used the all information for matter of reasoning and evaluation of the Applicant case for protection visa. This was against section 424A of the Migration Act 1958.

33                  The Federal Magistrate noted the circumstances of the appellant’s appearance before the Tribunal.

34                  The Federal Magistrate observed that the Tribunal accepted that the appellant was of Manyou/Yadava caste, which was an OBC, but in the middle range of OBC’s in Kerala.

35                  The Federal Magistrate then considered each ground of appeal.

36                  His Honour dismissed the alleged failure to investigate the appellant’s genuine claims, observing that the appellant bore the onus of proving that he was a refugee: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12.  The very limited circumstances in which failure to make enquiries by the Tribunal may constitute a “failure to review” were not present in this case: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25].  The appellant had not identified to the Tribunal any enquiry about any particular aspect of his claim that he considered should have been investigated.

37                  His Honour dismissed ground 2.  He observed that, contrary to the appellant’s assertion, the Tribunal did not ignore his OBC background.  Rather, it had accepted that the appellant’s caste fell within the OBC’s, although it was in the middle range in Kerala (at [52]). The Tribunal’s reasons identified the material (whether provided by the appellant or from the Tribunal’s own resources) that it took into account before making the decision.  His Honour found that “[a]ll of this material is referenced in the decision. I am satisfied that this ground of review cannot be sustained and should have been dismissed” (at [29]).

38                  His Honour rejected the ground 3 for the following reasons (at [30]):

when reviewing an application for refugee status the decision maker must bring an open mind as such a person may find it difficult to prove their allegations: Randhawa (above). However, this must be balanced with the merits of a case, items of evidence and the credibility of witnesses: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. It is not necessary for the Tribunal to possess rebutting evidence before deciding that a particular assertion is not made out: Selvadurai v Minister for Immigration & Ethnic Affairs (1994)34 ALD per Heerey J at 347 at 348. The Tribunal is not required to accept uncritically any and all claims made by an Applicant: Randhawa (above) per Beaumont J (above) ibid at 451; Minister for Immigration & Ethnic Affairs v Guo (above); Prasad v Minister for Immigration & Ethic Affairs (1985) 6 FCR 155 at 169–170. I am satisfied this ground of review cannot be sustained and should be dismissed.

39                  His Honour rejected ground 4 for the following reasons:

[31] The Applicant alleges here that the Tribunal breached s 424A of the Act by not providing to the Applicant before the hearing information it had concerning OBC in India which the Applicant claims was used against him.

[32] In para [91] of the Tribunal decision, the Tribunal provides a concise summary of the proceedings on 19 August 2009. In that summary, the Tribunal indicates that it discussed with the Applicant the independent country information concerning Maniyani caste and sets out a list of topics that the information covered. At the end of that discussion, the Tribunal records the following

The Tribunal indicated that the independent country information concerning the Maniyani caste showed it to be among the dominant caste at the top of the OBC hierarchy and did not appear to support his claims. The Applicant then discussed how his caste is unable to prove the discrimination but that practically it occurred constantly.

[33] At the end of that summary, the Tribunal identifies six further documents that the Applicant supplied to the Tribunal. Under the heading “independent information” the Tribunal lists the material that it considered in respect to the application. All of this material is excluded from the provision of s 421A(1).

[34] As discussed above s 424A(1) does not apply to independent country information: VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 and that the selection and weight of independent country information is a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10.

The appeal

40                  The first respondent submitted that neither ground of appeal was pleaded below and the appellant therefore required leave to raise them now.  Further, leave should be refused, as both grounds were misconceived and without prospects of success.

Ground 1

The Hon. FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claims and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act.  The Tribunal failed to observe this obligation amounted to a breach of a Statutory Obligation.

41                  In my opinion, ground 1 is, even on a benevolent construction, a new ground.  The appellant therefore requires leave in order to raise it.

42                  The factors relevant to the grant of leave to appeal on the ground not raised below were considered in detail by Flick J in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11].

43                  Ground 1 alleges that the Tribunal’s decision was manifestly unreasonable because it ignored or failed to consider the appellant’s claims to fear harm by reference to s 91R of the Act.

44                  Section 91R of the Migration Act 1958 (Cth) relevantly states:

91R Persecution

(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.

(3) For the purposes of the application of this Act and the regulations to a particular person:

(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

45                  The Tribunal, when determining whether the appellant suffered persecution in India or fled India for a Convention reason, considered all the appellant’s claims which centred on his (and his family’s) membership of a particular social group (the Maniyani (or Yadava) caste.

46                  The Tribunal, while broadly accepting the occurrence of certain events, incidents or setbacks (such as the land dispute and prevention of house construction, the wife’s loss of a bank job, her lack of success in a teaching career and the appellant’s three day detention) did not accept that a Convention reason (the appellant’s caste membership and perhaps religion) was the essential and significant reason for those problems.  Further, the Tribunal simply did not accept that some claimed difficulties (such as the denial of an education to the appellant and his daughter) occurred at all.

47                  The Tribunal expressly stated that a Convention reason was not the essential and significant reason for the difficulties it accepted the applicant had experienced.  It was unnecessary for the Tribunal to focus on the degree of harm or the definition of persecution in s 91R.

48                  Therefore, in my opinion, ground 1 has no prospects of success and leave to raise it should be refused.

Ground 2

The Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.

49                  Counsel for the first respondent primarily submitted that ground 2 was new and the appellant thus required leave.  Counsel conceded, however, that given its generality, ground 2 might reflect ground 2 of the application for review before the Federal Magistrate (which alleged that the Tribunal ignored the appellant’s OBC background which endangered his life).  Ground 2 of the present appeal alleged that the Tribunal was unjust and did not take into account “the full gravity of my circumstances and consequences” which, when read in context, may refer, inter alia, to the appellant’s OBC caste and its claimed effects.

50                  In my opinion, however, assuming that ground 2 was, in substance, raised below, and hence does not require leave, it cannot succeed.

51                  An examination of the Tribunal’s lengthy and detailed reasons indicates that it fully considered all of the appellant’s claimed circumstances and their alleged consequences, (including their asserted gravity) although it did not accept those claims.  The appellant’s complaint before this Court conflates the failure to consider his claims with a failure to accept, after due evaluation, that they have been established.

52                  In my opinion, ground 2 of the notice of appeal is not made out.

53                  Before me, the appellant orally submitted that the Tribunal relied only on general information and failed actively to investigate his individual or personal circumstances.  That submission reflected a ground which was raised before the Federal Magistrate and dismissed, correctly, in my view, by his Honour.  His Honour relied on authority which establishes that the Tribunal has an obligation to investigate only where the failure to do so would constitute a failure to review, which occurs in relatively narrow circumstances not present in this case. In so far as the appellant’s submissions expressed disagreement with the independent country information accepted by the Tribunal, as the Federal Magistrate observed, the selection of such material and the weight accorded it was a matter for the Tribunal.

conclusion

54                  In my opinion, the appeal should be dismissed.

Associate:

Dated:         23 November 2010