FEDERAL COURT OF AUSTRALIA

SZOUL v Minister for Immigration and Citizenship [2011] FCA 945

THE COURT ORDERS THAT:

1.    The first and second appellant’s notice of appeal filed on 3 May 2011 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal against a judgment of a Federal Magistrate delivered on 18 April 2011, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

BACKGROUND AND PROCEDURAL HISTORY

2    The appellants are husband (the first appellant) and wife (the second appellant). They are citizens of India who arrived in Australia on 11 October 2009. On 19 November 2009 the appellants lodged applications for protection visas with the Department of Immigration and Citizenship. A delegate of the Minister for Immigration and Citizenship refused those applications on 16 July 2010. On 3 August 2011, the appellants applied to the Tribunal for a merits review of the delegate’s decision. The Tribunal subsequently affirmed the delegate’s decision.

CLAIMS OF RELIGIOUS PERSECUTION

3    The appellants claimed to fear persecution in India by reason of their religious beliefs. The appellants claimed to be of the Christian faith and claimed to fear religious persecution, particularly because of the first appellant’s proselytising in that faith. The first appellant stated that he was born in Kerala, India on 22 July 1978. The second appellant was born on 31 March 1984 and their daughter, who remains in India, was born on 17 November 2008.

4    The first appellant claimed that he has been actively involved with the Christian church since he was young, including being involved with the Christian Liberation Theology movement which he described as a movement fighting against communists, the Bharatiya Janata Party (BJP) and the Indian National Congress. The first appellant claimed that this movement was involved in protests in India.

5    The first appellant claimed that on 21 December 2004, while in Orissa, India, he and a group of missionaries were attacked by members of the Shiv Sena (a Hindu extremist group) during which one of the Shiv Sena members was killed. The first appellant was subsequently charged with murder. He claimed that his case was still pending in India. The first appellant claimed that he returned to Kerala after the incident because he feared being falsely convicted of murder in Orissa. He claimed that members of the Shiv Sena actively continued to seek revenge against him.

6    Both appellants left India in 2005, seemingly to go to the United Arab Emirates (“UAE”), although this is not clear from the materials before me. The first appellant claimed that in August 2008 he was to be deported from the UAE, due to his proselytising activities and was banned from returning. The first appellant claimed his initial response was to move to Sharjah, another member State of the UAE. However, he was eventually deported from there to India in May 2009.

7    Upon his return to India, the first appellant claimed he was not persecuted. However, he did claim that on 16 August 2009 he and his wife were attacked in their home by members of the Shiv Sena and, in the process, their house was set on fire. The police became involved, but they were unable to identify the culprits. On 10 September 2009, the first appellant claimed he was seriously assaulted, again by members of the Shiv Sena and, as a result of that attack, he was hospitalised. He claimed that the police became involved but, again, they could not identify the culprits. The first appellant also claimed that prior to the incident in Orissa in 2004, the appellants had not encountered any difficulties regarding their religious beliefs.

8    In submissions to the delegate, the first appellant claimed that those who had allegedly persecuted him in India had made contact with his uncle in order to “bring him back to India from the UAE”. After he refused, the first appellant claimed that his uncle was found dead in a well. The first appellant made a further claim that his wife was assaulted while pregnant and she had to be hospitalised.

9    The delegate refused the appellants’ applications for protection visas because she was not satisfied that the appellants had a genuine fear of harm and because she concluded there was no real chance they would suffer persecution should they return to India.

THE TRIBUNAL AFFIRMED THE DELEGATE’S DECISION

10    The Tribunal accepted that the appellants were Christians. However, it did not accept that they had been targeted by Hindu extremists or the authorities in India. The Tribunal found that the appellants had fabricated those claims in order to enhance their chances of being granted protection visas.

11    The Tribunal was not satisfied that the appellants had provided truthful accounts of their circumstances while living in India or the UAE. Critical to this finding was the second appellant’s evidence that she did not remember being attacked in their home by Hindu extremists in August 2009, or their home being set on fire. Accordingly, the Tribunal found that the first appellant essentially fabricated these claims.

12    The Tribunal also contrasted the first appellant’s various claims that he was actively involved in proselytising in India, with the second appellant’s limited recollection of such activities. As a consequence, the Tribunal also found that these claims were fabricated to enhance their applications. Similarly, due to inconsistencies in his evidence and conflicts with the documentary evidence, the Tribunal did not accept the first appellant’s claims about being deported from the UAE in the circumstances he described.

13    In respect of the substantive claims of persecution from Hindu extremists, and particularly the Shiv Sena, the Tribunal concluded, largely as a result of these adverse credibility findings, that these claims were also untruthful. The Tribunal doubted whether the first appellant had been involved in an incident in Orissa in 2004 and did not accept the second appellant’s attempt to corroborate those claims.

14    The Tribunal also relied on its adverse credibility findings to reject as false the documents the appellants submitted in support of their claims. In rejecting these documents, the Tribunal made reference to external source material indicating the high prevalence and availability of forged documents in India.

15    Finally, while the Tribunal accepted that there was general communal violence between religious groups in India, it was satisfied from independent country information that the authorities in Kerala commonly provided a reasonable level of protection to Christians and that they were able to practice their religion freely and safely there.

16    Having rejected the core claims of the appellants, the Tribunal concluded there was no real chance the appellants would suffer serious harm in India by reason of the first appellant’s religion, or for any other Convention related reason. Accordingly, the Tribunal affirmed the delegate’s decision.

THE FEDERAL MAGISTRATE FINDS NO JURISDICTIONAL ERROR

17    In their application for judicial review in the Federal Magistrates Court, the appellants claimed that the Tribunal had constructively failed to exercise its jurisdiction. They relied upon three particular matters which may be summarised as follows:

1.    The Tribunal erred in assessing the first appellant’s credit without first assessing whether the substance of the documents he submitted corroborated his claims.

2.    The Tribunal member had made up his mind to dismiss the appellants’ application.

3.    The Tribunal had failed to consider an integer of the appellants’ claims, that is, whether or not a Christian activist in India was at risk of harm from radical Hindus, and able to access effective protection

18    As to the first matter, the Federal Magistrate found that it was apparent from the Tribunal’s decision record that it had formed the view that the first appellant’s credibility was so tarnished that it was justified in giving no weight to the documents submitted in support of his claims, citing: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [49] per McHugh and Gummow JJ. The Federal Magistrate also observed that it was open to the Tribunal to rely upon independent country information about the prevalence and availability of false documents in India to conclude those documents were not genuine.

19    The Federal Magistrate characterised the second matter as an allegation of actual or apprehended bias on behalf of the Tribunal. Proceeding on that basis, the Federal Magistrate gave careful consideration to the claims the first appellant made in the hearing before her: see SZOUL & Anor v Minister for Immigration & Anor [2011] FMCA 310 at [32]–[38]. Having done so, her Honour found that the fact that the Tribunal hearing was short, that the hearing was not adjourned, and that certain matters were not discussed, was not enough to demonstrate actual bias on the part of the Tribunal. Her Honour also found that the circumstances were not such as to give rise to any finding of apprehended bias on the part of the Tribunal.

20    The Federal Magistrate dealt with the third matter by addressing two interpretations of what could have been reasonably intended by it. Insofar as it was intended to allege that the Tribunal did not have regard to the risks associated with the first appellant’s proselytising, the Federal Magistrate concluded that it was unnecessary for the Tribunal to consider that claim any further because it had not accepted it as credible. Insofar as it was intended to allege the Tribunal did not have regard to the appellants’ involvement in the Christian faith, the Federal Magistrate found that the Tribunal had considered that claim and decided that the appellants could safely and freely practice their religion in Kerala, India.

21    For these reasons, the Federal Magistrate did not find any jurisdictional error on the part of the Tribunal and accordingly dismissed the appellants’ applications for judicial review.

THE CONDUCT OF THE PRESENT APPEAL

22    On 3 May 2011 the appellants filed a notice of appeal in this Court which alleged that (without alteration):

1.    The Hon/FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants 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 learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

4.    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.

23    At the hearing before me on 17 August 2010, the first appellant appeared in person assisted by an interpreter and Ms Watson appeared as counsel for the first respondent. In his brief oral submissions, the first appellant claimed his wife did not corroborate his evidence before the Tribunal because she was confused about which incident was being referred to: the incident in Orissa or the attack on their house in Kerala. Later, he appeared to contradict this explanation by claiming she had suffered “stage fright”.

CONSIDERATION

24    Ground 1 of the appellants’ notice of appeal seeks to raise a new ground of appeal. Section 91R of the Migration Act 1958 (Cth) (“the Act”) was not raised before the Federal Magistrate. Accordingly, leave is required to raise it for the first time on appeal. The grant of such leave is discretionary. In exercising that discretion, the primary question is whether it is expedient in the interests of justice to grant such leave: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]–[48] per Kiefel, Weinberg and Stone JJ. See also SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]–[11] per Flick J and SZOLC v Minister for Immigration and Citizenship [2010] FCA 1285 at [41] per Dodds-Streeton J.

25    In this instance, I do not consider it is expedient in the interests of justice to grant leave because there is no merit to ground 1. My reasons for that conclusion are as follows.

26    Ground 1 seems to suggest s 91R of the Act prescribes what the term “persecution and harm” means for the purpose of assessing Australia’s obligations under the Convention. If so, this allegation fundamentally misconceives why it was that the Tribunal affirmed the delegate’s decision. In short, for the reasons outlined in [10]–[15] above, the Tribunal found that the appellants’ claims of persecution and harm (particularly the first appellant’s) were untruthful and fabricated. In other words, there were no credible claims extant for the Tribunal to consider, whether in terms of s 91R of the Act, or otherwise. Conversely, had the Tribunal been satisfied that the appellants’ claims were credible, and that the fear of harm that the appellants claimed were well-founded, only then would that fear of harm fall to be considered by the Tribunal by reference to, among others, s 91R of the Act.

27    Ground 2 is equally lacking in merit. It alleges that the Federal Magistrate did not consider “the legal and factual errors” made by the Tribunal. As to factual errors, it is well established that neither the Federal Magistrates Court, nor this Court, can review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291 and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. As to legal errors, none is particularised. Without these alleged errors being identified, it is impossible to make any assessment as to whether they exist and, if they do, whether they amount to the requisite jurisdictional error. Certainly, from my reading of the Federal Magistrate’s detailed reasons for judgment, none is apparent.

28    Ground 3 of the notice of appeal asserts that the Federal Magistrate erred by not finding that the Tribunal’s decision was unjust. As I have mentioned several times above, the appellants’ application before the Tribunal was rejected because the Tribunal made significant adverse credit findings against the appellants, particularly the first appellant. These credit findings are matters for the Tribunal “par excellence” and, as such, are not reviewable by the Federal Magistrates Court, or this Court: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67] per McHugh J, and the cases referred to at [25] above. It follows that ground 3 of the notice of appeal is also lacking in merit.

CONCLUSION

29    For these reasons, the appellants’ appeal must be dismissed. I will hear the parties on the question of costs.

Associate:

Dated:    19 August 2011