FEDERAL COURT OF AUSTRALIA

SZNHD v Minister for Immigration & Citizenship [2009] FCA 1524

SZNHD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1010 of 2009

DOWSETT J

23 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of $2,548.00

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 eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellant was born in India on 3 March 1973 and is a citizen of that country.  He is a Roman Catholic and claims to fear persecution for reason of his religion.  He was born and raised in the state of Kerala where there is a substantial Christian community.  He has been educated to tertiary level and was employed in India as a senior executive in an IT company.  He is fluent in Malayalam, English and Hindi.  Between 2005 and 2008 he lived in Delhi, Haryana, Bangalore and Gujarat.  He was married on 21 February 2008.  He entered Australia on 8 July 2008.  On 19 August 2008 he applied for a protection visa.  The first respondent’s delegate declined the application. The second respondent (the “Tribunal”) upheld that decision.  The appellant applied to the Federal Magistrates Court for review of that decision.  That application was dismissed.  He now appeals from that decision.

2                     The appellant claims to fear persecution by Hindu fundamentalists.  He first experienced such problems in 2008 when he was living in the village of Pathreri, near the border between Rajasthan and Haryan, approximately 2,500 kms from Kerala.  He was engaged in teaching Bible studies and English.  He was told by members of extremist Hindu organizations not to continue with these activities.  He claims that he was targeted because he is a Roman Catholic.  He says that Hindu extremists monitored his activities, preventing him and other Roman Catholics from going to Church, warning them to stop seeking to convert and “all religious things”, and threatening that they would be killed if they did not desist.  He claims that the police and local politicians supported the extreme Hindus and would not assist him. 

3                     The appellant was frightened.  He sent his family to Kerala whilst he went to Bangalore and Ahmadabad to search for work.  However “they didn’t allow” him to stay “anywhere”.  Everywhere that he went, they “traced” him.  In Bangalore and Ahmadabad he was approached by anonymous men who asked him what he was doing there.  He assumed that they were Hindu extremists.  In mid-2008 he learned that his family in Kerala had been harassed by Hindu extremists.  His father was told not to protect him, and that he would be killed if he did so.  Although the appellant had lived in Pathreri since 2006, it seems that his problems only commenced in 2008.  He says that he lived for many years in Delhi without difficulties but could not, now, live safely there.  The people in Pathreri would track him down and kill him.  He says that although Kerala had a large Christian population, people from the northern states who had targeted him would seek to harm him there.  He also says that Kerala is not a good state for him in terms of employment.  Other places in India offer better employment opportunities in his area of employment. 

4                     Country information indicates that Christians in Kerala are able to practise their religion freely and safely.  Almost 20% of the population is Christian.  Country information also indicates that violence directed at Christians occurs in India, instigated by extremist Hindus.  However there are government initiatives which aim at preventing it.

5                     The Tribunal accepted that the appellant is a Roman Catholic and that, whilst living in the town of Pathreri, he was targeted by Hindus who objected to his involvement in community Bible and English classes.  It also accepted that he was at risk of serious harm in that town and was forced to leave.  However the Tribunal found that he had exaggerated his claims as to subsequent events in order to enhance his prospects of obtaining a protection visa.  It did not accept his claim that he was followed by Hindu extremists throughout India, or that they targeted him and/or his family in Kerala, Bangalore or Ahmadabad.  It accepted only his evidence concerning harassment in Pathreri. 

6                     Although it is no part of my function to consider the credibility of the evidence, the appellant’s claim that his movements were traced, or he was followed, from one place to another seems most unlikely.  He does not claim to be a prominent leader of the Roman Catholic Church in India, or to have any public profile other than for his involvement in teaching religious studies and English in one place.  It seems most unlikely that in a country of the size, and with the population of India, such a person would attract such persistent harassment. 

7                     The Tribunal concluded that the applicant could live safely, and freely participate in religious activities of his choice, if he lived in Kerala where he was born and raised, or in another Christian area.  It considered that his reluctance to live in Kerala was motivated by “lifestyle aspirations rather than his fear of persecution for a Convention reason”.  It considered that given his qualifications, he would be able to relocate successfully to Kerala.

8                     The appellant does not claim persecution by the State.  However he asserts that the State is unable to protect him from persecution by Hindu extremists.  The Tribunal was satisfied that citizens in India had access to a reasonable level of protection provided by the State, and that Christians in the predominantly Christian parts of India are provided with reasonable levels of protection by the State.  The Tribunal therefore concluded that it was not satisfied that the appellant faced a real chance of serious harm by religious extremists in India for reason of religion or any other Convention reason.

9                     The grounds for the appellant’s application to the Federal Magistrates Court were as follows:

1.         The Tribunal failed to consider properly the test whether the applicants would suffer harm as per sec. 91R (2) (a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India.  The tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

2.         The Tribunal failed to act that the applicants satisfy the definition of “Refugee” as defined in article 1A(2) of the convention.  To go further the Tribunal failed to see that the applicants satisfy, the four key elements that are required to satisfy the convention definition.  The applicant state that the Tribunal reffers to four key elements and since they satisfy them they are entitled to protection visas.

•           (The tribunal accept the applicants claim that he is Roman Catholic, It accept his claim that during 2008, while he lived in the town of Pathreri, he was targeted by Hindu who objected to his involvement in community Bible and Community classes.

•           The Tribunal accept the applicant’s claim that he was at risk of serious harm in Pathreri and he was forced to leave the town … .

3.         The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against the case in the final outcome, The Tribunal used all information for matter of reasoning and evaluation of my case for the protection visa, The Tribunal was preoccupied and did not have fresh look.  The Tribunal failed to consider the country information in a proper way.

10                  The learned Federal Magistrate understood the first ground to be that the Tribunal had not considered whether the appellant would suffer serious harm if he relocated within India.  Her Honour considered that a fair reading of the Tribunal’s decision made it clear that it had done so.  Ground 2 appears to be an assertion that because the Tribunal accepted that he was a Roman Catholic, that he had been harassed in Pathreri and that he was at risk of serious harm there, it ought to have found that he had a well-founded fear of persecution for reason of his religion.  This ground fails to take account of the fact that the Tribunal considered that he could safely and successfully relocate to Kerala.  Her Honour recognized this deficiency in his case. 

11                  Ground 3 seems to involve an allegation concerning the way in which the Tribunal used country information and a complaint that the Tribunal “did not have a fresh look” at the case.  Her Honour concluded from a perusal of the reasons that neither assertion was valid.  In those circumstances her Honour dismissed the application.

12                  The notice of appeal to this Court identifies two grounds:

1.         The honourable FM failed to consider the grounds of my application such as error of law made by the Tribunal.  The Court below erred in that it ought to have found that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the Act. 

2.         [The] Tribunal was un satisfied that there is a real chance that I would suffer harm amounting to persecution if I return to India.  This is a serious Jurisdictional error made by the Tribunal. 

13                  Ground 1 is not a ground of appeal.  It alleges a failure to consider the grounds of the application “such as error of law”, but no error of law is identified.  The appellant claims that her Honour erred in that she ought to have found that, on the evidence before the Tribunal, it was open to it to find that the appellant was a refugee within the meaning of the Act.  It was no part of the Federal Magistrate’s function, on an application for judicial review, to address that question.  In any event the Tribunal did not find that the evidence, if accepted, would not justify a finding that he was a refugee.  It rather rejected his claim because it did not believe him, and because it was satisfied that he could safely and successfully relocate within India. 

14                  Ground 2 merely asserts that the Tribunal’s unfavourable decision is, itself, jurisdictional error.  Even if one takes the appellant’s meaning to be that there was jurisdictional error in hearing and determining the case, no error is particularized.

15                  In the course of oral submissions the appellant reiterated a number of the points made previously.  He said that there are still problems in Kerala, that he cannot live in northern India, that he has tried unsuccessfully to relocate and that harassment would occur anywhere in India because the Hindu extremist forces are spread throughout the country.  These assertions do nothing to establish jurisdictional error in the Tribunal.  They are inconsistent with the factual findings, particularly the finding concerning the extent to which he has previously been subject to harassment and the finding concerning the practicability of his relocating.

16                  In the circumstances, and for the reasons which I have given and those of the Federal Magistrate, the appeal must be dismissed.  I order that the appellant pay the first respondent’s costs fixed in the amount of $2,548.00.

Associate:

Dated:         17 December 2009