FEDERAL COURT OF AUSTRALIA

SZRDB v Minister for Immigration and Citizenship [2012] FCA 893

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

2.    Costs are fixed in the sum of $1,850.00.

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

REASONS FOR JUDGMENT

Introduction

1    This appeal is from a judgment of the Federal Magistrates Court of Australia given on 4 June 2012 at Sydney dismissing the application and ordering the applicant to pay the first respondent’s costs in the sum of $4,000.

2    The grounds of appeal to this Court are as follows:

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

2.    The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of RRT.

The Tribunal decision

3    The Tribunal gave its decision on 10 January 2012, affirming the decision not to grant the applicant a Protection (Class XA) visa.

4    The Tribunal summarised the written claims of the applicant (to whom I will refer as the appellant); reviewed the audio recording of a Departmental interview attended by the appellant; set out the claims of the appellant at that hearing; identified a number of documents received from the appellant after the hearing; and referred briefly to independent country information concerning document fraud.

5    The Tribunal accepted that the appellant was a citizen of India, as he claimed to be.

6    The appellant claimed to fear harm in India at the hands of a group called the RSS (Rashtriya Swayamsevak Sangh) and other Hindu extremist groups because he was active in the Kerala Catholic Youth Movement (KCYM) and because he was blamed for the conversion of a Hindu girl to Catholicism.

7    The Tribunal accepted that the appellant was a Catholic of the Latin Church. The Tribunal also noted that the appellant’s claims to be a fully observant Catholic outside India, attending Mass every Sunday, were unsubstantiated from any external source. The appellant’s inability to supply the names of churches in the United Kingdom or Australia where he claimed to have pursued this pattern of worship over a combined period of some four or five years cast doubt on the truth of those claims.

8    The Tribunal then made findings about the appellant’s religious activism. The Tribunal made a general comment on the appellant’s evidence: “despite the [appellant’s] claim that he devoted a considerable part of his youth and young adulthood to religious observance and religious activism, his account of it is notably vague and largely lacking in circumstantial detail.” The Tribunal found that the appellant had significantly exaggerated the level of his involvement in the KCYM.

9    As to the appellant’s claim at the hearing that he had been involved in preaching the Bible to Hindu and Muslim children in the course of Sunday School and catechism classes which he and others from the KCYM gave, the Tribunal said it had considerable doubt as to the plausibility of the claim that either Hindus or Muslims would permit their children to be present at such overtly Christian events designed for the obvious purpose of conversion. The Tribunal noted also that when the appellant was asked to confirm the claim he shifted ground.

10    The Tribunal referred to a supporting letter provided by a priest but noted that the letter provided no detail. The Tribunal also referred to two certificates but said they clearly added little to the appellant's claims to have been an activist in KCYM.

11    The Tribunal said it was not satisfied that the appellant involved himself in the form of religious activism in India which he claimed. The Tribunal was not satisfied that the appellant did anything to distinguish himself from other Catholics in his area in terms of religious beliefs or activities.

12    In relation to the appellant being instrumental in arranging the marriage of a Christian friend to a Hindu girl who had then converted to Christianity, the Tribunal said the appellant’s references to this matter at the hearing were brief, vague and lacking in circumstantial detail.

13    The Tribunal was not satisfied that the appellant was ever involved in the conversion to Christianity of a Hindu girl in a way which caused him to be targeted by Hindu activists or members of her family.

14    In relation to incidents of harm, the Tribunal said that the appellant had made differing and inconsistent claims to have suffered physical harm in India at the hands of Hindu activists.

15    The Tribunal considered the description of an alleged assault and said it was not consistent in its basic elements with the account the appellant gave in his written statement or at the Departmental interview. The Tribunal found that the inconsistency cast strong doubt over the credibility of the appellant's claims about it.

16    At the hearing, the appellant suggested there had been a second incident in which he had been physically attacked. The Tribunal said that the appellant’s description of this incident was notably sketchy. The appellant’s explanation as to why the incident had not been mentioned by him in his original claims was that he had not specified to his friend who helped in his application how many times he had been attacked.

17    The Tribunal also considered in this context the medical documents submitted by the appellant after the hearing. The Tribunal accepted that they were authentic but they referred to a cardiac problem and later consultations with a gastroenterologist. The Tribunal said none of the latter documents, dated after the first alleged attack, referred to the appellant having suffered an injury. Taken together, the Tribunal was not satisfied that any of the medical documents could be said to provide direct support for the appellant’s claims to have suffered harm in India.

18    The Tribunal said it was not persuaded that the appellant ever suffered physical harm in India as he claimed.

19    Under the heading “Failure to seek protection”, the Tribunal referred to the appellant having spent some three and a half years in the United Kingdom during which period he had not sought protection as a refugee, including at the point when he was being deported from the United Kingdom. The Tribunal said it had considered the explanations the appellant suggested for this but was not satisfied that they were convincing. The Tribunal said it was not satisfied that it was plausible that had the appellant been forced to take the momentous step of leaving his own country to escape personal harm he would then have allowed himself to be so easily deterred from applying for protection once he had reached a place of safety. The Tribunal found that the appellant’s failure to seek protection during the period he was in the United Kingdom cast doubt on the credibility of his claim to have feared harm in India.

20    The Tribunal said that further doubts were raised by the fact that the appellant first arrived in Australia on 21 April 2010 and spent two months in Australia. He did not seek protection during this period but instead returned to India on 22 June 2010, remaining there for eight months before his second visit to Australia. By his own account, the appellant lived for at least part of this period in his parents’ home and returned to work in the shop owned by his father. When he was asked about this at the hearing he claimed that his return to India was necessitated by his father’s ill-health and the fact that his father wished him to marry. The Tribunal said it was not satisfied that these actions were consistent with those of a person who genuinely feared that if he returned to India he would be killed or seriously injured by his enemies.

21    In summary, the Tribunal was not satisfied that the appellant was, or was known as, an activist member of the Catholic church in his area who was involved in preaching or evangelising among Hindus as he claimed. The Tribunal was not satisfied that the appellant was held responsible for the conversion to Christianity of the Hindu wife of a friend. The Tribunal was not satisfied that the appellant was ever targeted by the RSS or other Hindu extremists groups for the claimed reasons. Nothing had changed since the appellant left India and the Tribunal was not satisfied there was a real chance that the appellant could face harm for those reasons if he returned. The Tribunal accepted that the appellant was a Catholic but was not satisfied, on the basis of the independent country information available to the Tribunal, that there was a real chance the appellant would suffer serious harm for such a reason in his area of Kerala state.

22    The appellant did not claim to fear harm in India for any other reason and no other reason was apparent on the face of the information before the Tribunal.

The Federal Magistrates Court

23    The application to the Federal Magistrates Court contained the following grounds:

1.    The Tribunal constructively failed to exercise its jurisdiction;

Particulars:

The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the documents corroborated his claims.

2.    The Tribunal did not give to the applicant before the hearing the independent information that it had about India. The Tribunal used this information. This was against section 424A of the Migration Act 1958.

3.    The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant the opportunity to be heard in respect of those matters.

24    The Federal Magistrate first summarised the appellant’s claims set out in a statement attached to his protection visa application and then referred to the findings of the delegate of the Minister. The Federal Magistrate then summarised the appellant’s claims before the Tribunal and the Tribunal’s decision.

25    It was necessary for the appellant in the Federal Magistrates Court to show that there was jurisdictional error on the part of the Tribunal. The Federal Magistrate held that the allegation that the Tribunal failed to engage in an active intellectual process with the documents provided by the appellant was not supported by the record of the Tribunal decision. The Federal Magistrate said there was no doubt that the Tribunal considered the appellant’s claims and engaged in an active intellectual process in doing so. His Honour said that the decision record disclosed that the Tribunal did engage in a meaningful and appropriate way with each of the documents provided by the appellant. As to the claim by the appellant that the Tribunal was in error in first assessing his credit without reference to the substance of the documents, his Honour said that on a holistic view of the Tribunal’s analysis, he accepted that the Tribunal assessed and weighed the corroborative evidence in balance with the appellant’s own evidence.

26    As to the alleged breach of s 424A of the Migration Act 1958 (Cth), the Federal Magistrate said the Tribunal was under no statutory obligation to disclose that information: the country information was not specifically about the applicant or another person but simply pertained to a class of persons, namely the Christian population of Kerala, members of the Catholic (Latin) church in India and conditions in India regarding document fraud.

27    As to the allegation, which was unparticularised, that the Tribunal reached adverse conclusions that were not obviously open to it on the known material, the Federal Magistrate said it was clear from the decision record that the issues which the Tribunal canvassed with the appellant at the hearing put him sufficiently on notice that they were ones which the Tribunal would need to consider when determining the application for review. The matters put to the appellant for comment included concerns about inconsistencies in his evidence; new claims only raised at the hearing; the failure to seek protection in the United Kingdom and his delay in seeking protection in Australia; and independent country information.

28    The Federal Magistrate held that the findings made by the Tribunal were open to it.

29    His Honour found there was no jurisdictional error apparent on the material before him. Accordingly, the Tribunal’s decision was a privative clause decision and the application must be dismissed.

The Federal Court appeal

30    I have set out above the grounds of appeal. In his oral submissions the appellant said only that he had not got justice in the Federal Magistrates Court as well as in the Tribunal.

31    As the first respondent pointed out, Ground 1 was not raised in the Federal Magistrates Court. It followed that the appellant required leave to raise that ground.

32    The first respondent submitted that leave to raise Ground 1 should not be granted because it would not be expedient in the interests of justice to do so. The first respondent also submitted that the ground was without merit and should be dismissed if the Court determined to grant leave to the appellant to raise it.

33    In my opinion, leave to amend to raise that ground should be refused. The ground is not particularised and, in its generality, amounts to no more than the appellant’s disagreement with the decision of the Tribunal and the Federal Magistrate. Such disagreement with the decision of the Tribunal would not of itself raise an issue of jurisdictional error, even if that ground had been raised before the Federal Magistrate.

34    The reference in the proposed ground of appeal to s 91R of the Migration Act is unparticularised. It takes the matter no further. Section 91R states relevantly that the refugee convention does not apply in relation to persecution unless the persecution involved serious harm to the person. The reference to the breach of statutory obligation was not further developed and, in my view, again takes the matter no further.

35     In my opinion, it is not expedient in the interests of justice to grant leave to amend to raise this ground. I refer to VAUX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46].

36    Ground 2 is also unparticularised. It is, in my opinion, unsustainable. On the face of his Honour’s reasons for judgment, the Federal Magistrate considered the alleged legal and factual errors contained in the decision of the Tribunal. It follows that the ground that the Federal Magistrate did not consider those legal and factual errors cannot succeed.

37    I see no error in his Honour’s reasons. I add that I can see no jurisdictional error in the reasons of the Tribunal.

Orders

38    For these reasons I dismiss the appeal with costs. In reliance on the affidavit filed by the first respondent sworn by Ms Vanja Bulut on 21 August 2012 in support of an application for a fixed costs order, I order that the costs of the appeal be fixed in the sum of $1,850.00.

Associate:

Dated:    22 August 2012