FEDERAL COURT OF AUSTRALIA

SZOGR v Minister for Immigration and Citizenship [2010] FCA 1357

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The Appellant pay the costs of the First Respondent.

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

1                     The appellant appeals from the decision of Emmett FM delivered on 20 July 2010 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 26 February 2010. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa (‘the protection visa’) to the appellant.

BACKGROUND

2                     The appellant is a citizen of India who arrived in Australia on 6 April 2009. On 8 April 2009 the appellant lodged an application for the protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 3 July 2009. On 30 July 2009 the appellant applied to the Tribunal for a review of that decision.

3                     The appellant claimed to be an Orthodox Hindu from Kerala whose village was dominated by Roman Catholic families. The appellant claimed that over time he and his brother became more involved with their Christian neighbours and took an interest in the Christian faith. This caused suspicion amongst the Hindu community in his village to the extent that his family became isolated from the Hindu community.

4                     The appellant claimed that members from the Hindu community attacked his family’s home and destroyed his father’s grocery store, forcing it to close. His family was forced to flee from their village and to settle in another part of a neighbouring state for six months. After their return, the appellant claimed that his vehicle had been attacked by Hindu extremists whilst he was returning from the hospital after having fallen ill. He claimed to have narrowly escaped serious injury.

5                     The appellant claimed that he subsequently joined a Christian welfare association, namely the Akashaparavavakal Backward Community Welfare Association (‘the Christian Association’). The appellant claimed that the popularity of the Christian Association’s welfare activities irritated the Hindu community, whose members suspected his family of converting others to Christianity. The appellant claimed that a Hindu group had attacked him one day when he was returning home with the Christian Association.

6                     The appellant claimed that he was attacked again the following week, after returning home from a wedding reception. The appellant claimed that after such attack he was admitted to the nearest government hospital but, when his friends from the Christian Association tried to take him to a medical college for further treatment, the hospital doctor denied them permission to move him, apparently because the doctor was a supporter of a Hindu organisation. The appellant claimed that his brother argued with the doctor concerning the appellant’s further treatment and medical expenses, which provoked the doctor to attack the appellant’s brother with a sharp instrument.

7                     The appellant and his brother were admitted to another hospital. The appellant claimed that after they returned home, he and his brother became active members of the Christian Association which in turn caused the Hindu community to become more violent towards them. The appellant claimed that such treatment forced them to again leave Kerala whereupon the appellant, his family and members of the Christian Association travelled around India. The appellant claimed that such travel rendered the family unable to draw an income.

8                     The appellant claimed that such incidents were reported to the authorities but claimed that he had been unable to obtain justice because his Hindu opponents had strong political connections. The appellant claimed that he had decided to leave India in order to live peacefully.

9                     The appellant claimed that after arriving in Australia, his family continues to receive phone calls from people making threats and enquiring about his whereabouts. The appellant also claimed at an interview with a delegate of the Minister on 25 June 2009 that he would be attending a religious service at a Christian Church at Dee Why on 26 June 2009. He produced a pamphlet relating to such service, and acknowledged that this would be his first attendance in Australia. The appellant provided to the Tribunal a copy of his baptism and confirmation record which indicated that he had been confirmed on 28 August 2009 in the Church of Jesus Christ of Latter-Day Saints at Harbord. A representative of the Church, Mr Mafoa, gave evidence that the appellant had been attending that church in addition to attending Bible Study.

THE TRIBUNAL’S DECISION

10                  The Tribunal found that the appellant was not a credible witness. The Tribunal considered that the inconsistencies and contradictions in his claims were of such a magnitude that they indicated that his claims were not truthful. The Tribunal also noted that the appellant's brother had also filed a protection visa application, and on the basis of contradictions between the evidence given by the appellant and his brother, inconsistencies in the appellant's evidence given at different times and the Tribunal's adverse credibility finding, the Tribunal concluded that the appellant’s claims had been fabricated. On the basis of deficiencies in the documents provided by the appellant in support of his claims, including a medical certificate, and the Tribunal's adverse credibility finding, it declined to place any weight on those documents. The Tribunal also found that even if it were to accept that the appellant had been admitted to hospital on the basis of the medical certificate it would not have found that the appellant had been hospitalised for the reason that he had claimed.

11                  The Tribunal thus found that there was no plausible evidence before the Tribunal that the appellant had suffered any persecution in India in the past. For the above reasons, the Tribunal also found that the appellant’s involvement in Christianity in Australia had been engaged in for the purpose of strengthening his claims to be a refugee and accordingly disregarded it pursuant to s 91R(3) of the Migration Act 1958 (Cth) (‘the Act’).

12                  The Tribunal also found that even if it were to accept that the appellant would practise Christianity if he were to return to India, the independent country information indicated that he would be able to do so safely in his village in Kerala. Further and alternatively, the Tribunal found that even if it were to accept that the appellant would experience difficulty in practising Christianity in his home village, it would be reasonable in the appellant's circumstances for him to relocate to another part of Kerala.

13                  The Tribunal was therefore satisfied that the appellant was not a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together, ‘the Refugees Convention’, or ‘the Convention’), and affirmed the decision of the delegate.

APPLICATION TO FEDERAL MAGISTRATES COURT

14                  By application dated 23 March 2010 the appellant applied to the Federal Magistrates Court of Australia for judicial review of the Tribunal’s decision. Before Emmett FM the appellant made numerous claims, as set out hereunder:

1.      The Tribunal failed to consider properly the test whether the applicants [sic] would suffer serious 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 had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

3.      The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not a converted Christian in India was at risk of harm from radical Hindus, and not able to access effective protection.

4.      The Tribunal’s decision was unjust and was made without taking into account the full gravity of [the applicant’s] circumstances and the consequence of the claim.

5.      The applicant satisf[ies] the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

6.      The RRT [the Tribunal] has failed to investigate [the] applicant[’]s claim, [e]specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 1 March 2010 [sic] was effected [sic] by actual bias constituting judicial error.

15                  Emmett FM was unable to find any jurisdictional error in the Tribunal’s decision, and dismissed each of the above grounds.

GROUNDS OF APPEAL

16                  On 9 August 2010 a Notice of Appeal from the decision of Emmett FM was filed in this Court. The Court sets out verbatim the following grounds of appeal:

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 Driver failed to consider the ground of my appeal that the Tribunal failed to consider properly the test whether the applicant would suffer serious 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 error caused by the Tribunal.

SUBMISSIONS

17                  The appellant appeared unrepresented but assisted by an interpreter. The appellant was unable to make any submissions in support of his appeal. However, the appellant claimed that he had received anonymous telephone calls from India on his mobile phone and that he could not return to India nor could he relocate in India because Christians were being attacked.

FINDINGS

Ground 1

18                  The appellant claimed that the Federal Magistrate erred by failing to find that the Tribunal acted in a manifestly unreasonable way when dealing with his claims, and ignored ‘the aspect of persecution and harm in terms of s 91R of the Act’.

19                  This ground was not raised before the Federal Magistrate and the Court must determine whether it is expedient and in the interests of justice to grant leave to raise such issue: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [163]-[164]. In order to do so, the Court is required to consider the merits of the ground sought to be raised: see VAAC at [26].

20                  The Tribunal rejected the appellant’s claims because the claims were inconsistent and contradictory to other claims made by his brother. That is, the Tribunal did not accept that the events which were relied upon by the appellant had actually occurred. The Tribunal stated that it did not find the appellant to be a credible witness. In view of the finding that no persecution had occurred, the Tribunal was not required to determine whether there was any harm which satisfied the definition of persecution as referred to in s 91R of the Act.

21                  The Tribunal was entitled to make findings in respect of the appellant’s credibility, and this Court cannot review them: see Re Minister for Immigration and Multicultural Affairs and Others: Ex parte Durairajasingham (2000) 58 ALD 609 at [67].

22                  No particulars have been provided of the alleged unreasonableness in which the Tribunal dealt with the appellant’s claims. Further, the appellant has not identified any specific matter which the Tribunal is said to have ignored.

23                  There is no error in Emmett FM’s finding as claimed. Accordingly the Court declines to grant leave to raise such ground.

Ground 2

24                  The appellant claims that Driver FM [sic] failed to consider the ground of his appeal that the Tribunal failed to consider properly the test whether the appellant would suffer serious harm or injury under s 91R(2)(a) of the Act.

25                  The above finding in respect of the first ground of appeal is also applicable to the second ground. As the Tribunal found that the appellant had not suffered persecution, the provisions of s 91R of the Act do not apply.

26                  Emmett FM found that in view of the Tribunal’s rejection of the appellant’s claims of past harm and of any persecution in India for a Convention related reason, the Tribunal was not obliged to consider whether the appellant could relocate to another part of India. Such alternate and independent finding was an additional ground for affirming the delegate’s decision.

27                  Even if such additional finding was found to be in error, the Tribunal’s decision would still be supportable on the basis that all of the appellant’s claims had been rejected: see VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33]. There was no suggestion that the Tribunal had any ‘uncertainty or lack of confidence’ as to whether the appellant had fabricated his claims: see SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415 at [112]-[128].

28                  Emmett FM concluded that even if the Tribunal had been obliged to consider the issue of relocation, it had done so correctly and its findings were reasonable in the appellant’s circumstances: see SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18 at [24].

29                  The Court is unable to find any error in the findings of Emmett FM as asserted in Ground 2 of the claim.

30                  It follows that both grounds of appeal fail and the appeal is dismissed.

Associate:

Dated:         13 December 2010