FEDERAL COURT OF AUSTRALIA D'Souza v Minister for Immigration & Multicultural Affairs [2000] FCA 714 Migration Act 1966 (Cth) ss 420(2)(b) and 476(1)(a) Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 applied Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 applied Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 distinguished Sameh v Minister for Immigration and Multicultural Affairs [2000] FCA 578 distinguished Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 referred to BENET ANTHONY DÕSOUZA and JOSEPHINE MARY DÕSOUZA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 10 OF 2000 KIEFEL, NORTH & MANSFIELD JJ 26 MAY 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 10 OF 2000 BETWEEN: BENET ANTHONY D'SOUZA and JOSEPHINE MARY D'SOUZA APPELLANTS AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGES: KIEFEL, NORTH & MANSFIELD JJ DATE OF ORDER: 26 MAY 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay to the respondent costs of the appeal to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 10 OF 2000 BETWEEN: BENET ANTHONY D'SOUZA and JOSEPHINE MARY D'SOUZA APPELLANTS AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGES: KIEFEL, NORTH & MANSFIELD JJ DATE: 26 MAY 2000 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a decision of Einfeld J given on 17 December 1999. His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (Òthe TribunalÓ) of 12 August 1999 which affirmed the decision of a delegate of the respondent to refuse to grant to the applicants and their infant son a protection visa under the Migration Act 1966 (Cth) (Òthe ActÓ). 2 The male appellant (ÒMr DÕSouzaÓ) was born in Mumbai in India on 22 July 1962. He is an Indian citizen. He and his wife Josephine Mary DÕSouza (ÒMs DÕSouzaÓ) arrived in Australia on 19 April 1998 with their son, who was born on 2 August 1997. Within a month of their arrival, they applied for a protection visa under the Act. Mr DÕSouza was the only appellant who claimed to be a refugee under the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) (Òthe ConventionÓ). It is a condition of the grant of a protection visa that the applicant be a person to whom Australia owes protection obligations under the Convention. In the present circumstances, it effectively required the Tribunal to be satisfied that Mr DÕSouza was a refugee as defined in Article 1A(2) of the Convention. The claim of Ms DÕSouza and of their son was based upon them being members of Mr DÕSouzaÕs family. They did not separately claim to be refugees under the Convention. 3 The Tribunal identified Mr DÕSouzaÕs claim as being: (1) that he feared harm from Muslims because of his Christian religion; and (2) that he feared harm from the Shiv Sena Political Party (Òthe SSPÓ), through the police, because he refused to participate further in SSP activities after he became engaged to marry in November 1995. The Tribunal was not satisfied that there was a real chance of harm to Mr DÕSouza or his family in respect of either of those claims, and therefore was not satisfied that Mr DÕSouza is a person to whom Australia has protection obligations under the Convention. 4 No complaint is made now of the TribunalÕs consideration of the claim that Mr DÕSouza feared harm from Muslims because of his Christian religion. However, it is contended that the Tribunal erred in failing to address the claim of Mr DÕSouza that he feared harm from Muslims because of imputed Hindu beliefs or affiliation because he had been a member of the SSP and involved in its activities. 5 In relation to the second claim, it is submitted that the Tribunal fell into reviewable error in its consideration of the claim by regarding it as a claim that he was being persecuted by the Indian authorities when it was a claim that the Indian authorities were sufficiently influenced or corrupted by the SSP to persecute him for imputed political opinion arising from his refusal to remain a member of the SSP and to continue his involvement with the SSP. 6 The third ground of review now argued is that the Tribunal failed to consider at all Mr DÕSouzaÕs claim that he feared persecution from the SSP, as a Hindu extremist political party, because of his marriage to a Christian. It is submitted that on the TribunalÕs own findings, there is more than a remote chance of him being harmed by Hindus. That submission is based upon an observation of the Tribunal made in the course of giving its reasons for rejecting the claim that Mr DÕSouza faced a threat of persecution by Muslims. The Tribunal said: ÒMoreover, the independent evidence is that violence towards Christians is a recent development in India and that the violence comes from Hindu extremist groups such as the [SSP] to which the applicant belonged.Ó There was information in the independent country information before the Tribunal upon which that observation was based. 7 At first instance, Einfeld J described the first contention in the following way: ÒThe second possible assertion made was that the applicant may have suffered some persecution or harassment at the hands of Muslims on the basis of his adherence to the Shiv Sena Party. It is more than a little doubtful this case was put to the Tribunal at all Ð if it was, it was put fairly peripherally. The Tribunal did not directly confront the question of whether the applicant was harassed by Muslims because of his Shiv Sena adherences, largely on the basis that the applicant had not made any claims in this regard.Ó His Honour nevertheless proceeded on the basis that that claim was before the Tribunal. He did not regard it as giving rise to a ground of review because the TribunalÕs findings in effect dealt with the claim in any event. 8 In our judgment, the Tribunal did recognise that that claim was made by Mr DÕSouza. It referred in detail to the material from which his claims to be a refugee were drawn: the application including the written statement to the Department of Immigration and Multicultural Affairs, the statement to the Tribunal, and his oral evidence before the Tribunal. He referred in his application for a visa to the claim that he left India because the SSP were trying to kill him because he had problems with an Assistant Commissioner of Police who was an SSP member, leading to his arrest. The Tribunal quoted at some length from that application. (The claim appeared to be a little inconsistent, as part of the application claimed that it was Muslims who had caused him to be falsely accused by the police and that the SSP had refused to help him.) The Tribunal asked Mr DÕSouza who he feared would harm him in India. He then attributed the incidents when he had been arrested to the SSP procuring the police to harass him. Later in his evidence, the Tribunal asked him why he feared harm from Muslims in India. It recorded his answers as follows: ÒHe said Ôthere was this Hindu-Muslim riot and I got involved in itÕ. I asked when. He said Ô1990-91Õ. I asked why that would be a problem for him now. He said ÔI was involved in Shiv Sena and in the riot, if anything happens they can identify the people involved in the riots earlier. After the engagement I quit the party and refused the people. They started harassing meÕ. I asked how.Ó 9 Mr DÕSouza then described two occasions on two consecutive weekends in August or September 1996 when his wife and mother-in-law had been confronted whilst going to church. He was not present on the first occasion and could not describe it. On the second occasion Òthey threatened their livesÓ, but when pressed he described it as being an argument during which he Òsomehow pacified them and avoided the situation and wentÓ. Ms DÕSouza gave evidence describing Muslim people as giving her trouble, and said that the threats to her were Òjust asking questionsÓ. 10 Although later in its reasons, the Tribunal described Mr DÕSouzaÕs claim to fear harm from Muslims as being only because of his religion, it is clear that the Tribunal made the effort to identify what Mr DÕSouzaÕs fears were described above. The TribunalÕs reasons are not to be construed with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (ÒGuoÓ); Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280. Having observed the care with which the Tribunal endeavoured to identify Mr DÕSouzaÕs claims, and as it extracted from him the matters referred to above, it is not apparent that the Tribunal failed to recognise that he was making that claim, even though later in its reasons in one passage it described the claim as simply being because of his religion. 11 More significantly, however, whatever the reason for harassment by Muslims of Mr DÕSouza and his family (that is whether based upon his Christian religion, or based upon his previous involvement with the SSP and therefore some imputed Hindu affiliations), the Tribunal found that there was no real chance that Mr DÕSouza faced anything more than a remote possibility of harm from Muslims. It said: ÒThe applicantÕs claimed experience of harassment from Muslims consists of two incidents, on consecutive Sundays in mid-1996 when his family were going to Church, which the applicant described as arguments. The applicant said that on the second occasion the Muslims threatened his familyÕs lives. His wife also said threats were made but when asked the nature of the threats, she said the Muslims were Ôjust asking questionsÕ. When the applicant was pressed for the details of this incident, he said ÔI somehow pacified them and avoided the situation.Õ The family continued to live in India for another two years without encountering any further difficulties with Muslims. In these circumstances, I am not satisfied the applicants face anything more than a remote possibility of harm from Muslims.Ó The Tribunal also referred to independent evidence to confirm its conclusion. That conclusion was reached on the basis of the evidence of Mr DÕSouza and Ms DÕSouza. It was a finding open to the Tribunal. It is not now attacked on this appeal. It is a finding which would apply equally to the harassment from Muslims, whether based upon Mr DÕSouzaÕs religion, or based upon any perception by Muslims that he had Hindu affiliations because of his earlier involvement in the SSP. Accordingly, in our opinion, this ground of review must fail. 12 We are also not persuaded that the Tribunal misconceived the second claim of Mr DÕSouza in the way alleged. It specifically recognised that claim as him being persecuted by the SSP, through the police, because Mr DÕSouza refused to participate further in SSP activities. The Tribunal accepted Mr DÕSouzaÕs evidence that he was an active member of the SSP until his engagement to be married, and then that he refused to continue that involvement. Although it did not expressly say so, it also appears to have accepted that the SSP harassed Mr DÕSouza, through the police, in January and February 1996 by having him arrested and prosecuted. It described the outcome of that process as Mr DÕSouza being Òreleased by the Court after due process of lawÓ. It did not accept Mr DÕSouzaÕs claim that he remains at risk of harm because of his refusal to continue involvement with the SSP. 13 In the course of his evidence, Mr DÕSouza had described being detained by the police for about one week on two occasions in January 1996 and in February 1996. He said he was released through the Courts with the help of a lawyer, as Òthey could not prove guiltÓ. He said he was beaten whilst in custody. They were the only two occasions upon which he had been harassed by the police, and he had had no dealings with the police after that time. He claimed to have an ongoing fear of the police despite having had no problems with them since that time. Later in his evidence, he described that he had been Òreleased on bailÓ but he was unable to describe to the Tribunal the terms and conditions of that bail. In that context, the Tribunal invited him to comment on the fact that he had left India legally on a passport validly issued, and that if he was still wanted by the authorities he would have been unable to do so. 14 The Tribunal clearly regarded his assertion that he had been released on bail as being an endeavour to explain why, despite the elapse of time, he still maintained his fear of harassment by the police. It positively rejected his claim that he was released on bail, because it was only made late in his evidence and then only in the face of questioning about the fact that he had had no further problems with the police in two years following his release. The Tribunal was satisfied that the applicant fabricated that claim on the spot in an attempt to bolster his evidence. It drew further support for that conclusion both from the fact that he had remained at large for more than two years since February 1996 before leaving India for Australia, and that he was not stopped when leaving India legally using a passport in his real name. If he was wanted by police, the independent evidence showed that that process would have brought him to the attention of the authorities. 15 The Tribunal also found that there was no evidence of SSP members taking any direct action against Mr DÕSouza or his family. 16 In our judgment, the way the Tribunal dealt with those claims is not shown to be infected by reviewable error. It has been submitted that the focus by the Tribunal upon Mr DÕSouza not being wanted by the authorities indicates that it failed to apprehend the true nature of his claim. We do not think that is the case. Its consideration of that question was in the context of considering the reliability of Mr DÕSouzaÕs claim that he had been released on bail in February 1996, so that he was still vulnerable to police action being taken, at the behest of the SSP, after that time. The Tribunal positively rejected that claim and found that whatever action the police had taken, at the behest of the SSP, had been spent by February1996. Thereafter he had been untroubled whilst in India from that source for over two years. No members of the SSP had, on the evidence, taken any action against him. In our opinion, it was open to the Tribunal to conclude, as it did, that Mr DÕSouza was not at risk from the SSP, either directly or through the police, and so did not have a well founded fear of persecution for a political or any other Convention reason in respect of that fear. It is not shown to have fallen into error in the way alleged. 17 The third ground of review can be shortly disposed of. Immediately after the passage in the TribunalÕs reasons referring to independent evidence that violence towards Christians coming from Hindu extremist groups such as the SSP is a recent development in India, the Tribunal added: ÒThe applicant has not made any claims of religious persecution by Shiv Sena or any other Hindus.Ó There is nothing in the material before the Tribunal which indicates that Mr DÕSouza was making such a claim. His claims were set out in the material referred to. The Tribunal, properly in our view, did not discern from that material the claim which it is now asserted that the Tribunal should have considered and failed to consider. The respondents made the submission that, even if the claim was not clearly made by Mr DÕSouza, the independent country information was before the Tribunal and the Tribunal was bound to consider the question by reason of s 420(2)(b) of the Act. We do not accept that proposition. The High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 (ÒEshetuÓ) decided that the obligation imposed upon the Tribunal by s 420 of the Act did not constitute an obligation, such that the failure to observe it falls within any of the grounds of review under s 476(1)(a) of the Act. 18 It was submitted that Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 is one case where the Tribunal was found to have erred in failing to identify and consider, from the material before it, a claim available to a visa applicant not enunciated by the visa applicant. That case is quite different from the present circumstances. The visa applicant had expressed two grounds for his fear of persecution, but the Tribunal had wrongly failed to consider one of them because it did not apprehend that that ground provided a foundation for fear of persecution for political opinion (per Sackville J at 45-48). The visa applicantÕs failure to draw to the TribunalÕs attention the doctrine of imputed political opinion did not give the Tribunal a reason not to address the claim as expressed (at 50). The decision in Sameh v Minister for Immigration and Multicultural Affairs [2000] FCA 578 is also of no assistance to the appellants. It relevantly concerned the failure of the Tribunal to address a substantial factual matter which was critical to whether the visa applicant was a person to whom Australia owed protection obligations. It did not concern the Tribunal failing to identify and address a claim not made by the visa applicant. There may be cases where the Tribunal needs to be astute to properly understand the nature of the fears expressed by a visa applicant, as sometimes language difficulties or trauma or other factors may make it difficult for the visa applicant clearly to enunciate the reasons for the fear of prosecution. This is not such a case. The Tribunal, in this case, did undertake such endeavours through its careful questioning of Mr DÕSouza, particularly in the light of his somewhat cryptic written claims in his application. It then addressed those claims. In our judgment, it was not incumbent upon the Tribunal to trawl through the independent country information in order to determine whether that material might give rise to a possible basis for a claim to be made by a visa applicant which has not been made by that visa applicant. 19 In any event, it is clear that the status of refugee depends upon the Tribunal being satisfied that Mr DÕSouza had a fear of being persecuted for the claimed reason, as well as that fear being well founded, Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567. There is no evidence that Mr DÕSouza had any such fear that he would be persecuted by Hindus, or extremist Hindus such as those who are members of the SSP, by reason of his marrying a Christian. He simply did not assert that claim. In those circumstances the Tribunal could not in any event have been satisfied that he had a well founded fear of persecution for that reason. 20 In our view this appeal must be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 30 May 2000 Counsel for the Appellants: M White Counsel for the Respondent: P Braham Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 26 May 2000 Date of Judgment: 26 May 2000 Date of Reasons: 30 May 2000