FEDERAL COURT OF AUSTRALIA

SZRES v Minister for Immigration and Citizenship [2012] FCA 1308

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    The appellant is a citizen of India who arrived in Australia on 28 November 2010 on a business visa. On 10 January 2011, the appellant applied for a protection visa. A delegate of the first respondent refused the application for the visa on 10 March 2011.

2    The appellant claimed to be an active member of the Kerala Catholic Youth Movement (KCYM), and to have been the secretary of the archdiocese of Thiruvananthapuram from 2001, and a parish council secretary of the Fathima Church in Kazhakoottam from 2009. He claimed that on 7 March 2010, while he was parish secretary, the parish had a church celebration involving fireworks lit in front of the church. The SNDP (Sree Narayana Dharma Paripalana Yogam) temple next door to the church caught fire, as did an adjacent property. The parishioners had to call the fire department. The appellant claimed that the SNDP and the owner of a nearby property, blamed him for the fire because of his position in the church. The owner of the adjacent property and the SNDP complained to the police. On 30 March 2010, said the appellant, members of the youth wing of the SNDP attacked his home.

3    The appellant complained to the police about this attack. The appellant said that the police were Hindu and, therefore, sympathised with the SNDP and did not take the attack on his house by the SNDP seriously.

4    The appellant claimed that in September 2010 he left his home for Bangalore to try and get away from the SNDP. The appellant said that he returned to Kerala for a week in October 2010 because his mother was sick. During this time he was attacked by some strangers who hit him with a stick. The appellant left for Pondicherry the next day where he stayed with relatives. He said that he returned to Kerala for three days in mid-November 2010 to see his family, prior to departing India for Australia.

5    The appellant claimed that the Indian authorities would not assist him and that he was unable to escape harassment by the SNDP supporters by relocating in India.

6    The appellant produced to the Tribunal a number of documents in support of his application, including the complaint about the fire made by the temple and the adjoining property owner to the police, referred to as the “first information report”. The parish priest, but not the appellant, was named by the complainants in the report.

7    On review of the delegate’s decision, the Tribunal said that although it had concerns relating to the omission of some significant events, mentioned by the appellant in his oral evidence, from his written statement, it was not necessary to make adverse credibility findings about the appellant.

8    The Tribunal accepted the appellant’s claims that he was the secretary of his local parish, that during a religious celebration fireworks caused a fire at the nearby temple, that the appellant’s home was attacked after the fire by the SNDP supporters, and that he was hit with a stick by strangers in October 2010.

9    However, the Tribunal found that the appellant’s fear of persecution in India was not well-founded, on the basis that the appellant’s conduct in returning to Kerala on two occasions was not consistent with the appellant’s claim of a subjective fear of persecution. The Tribunal also found that the harm suffered by the appellant was not serious harm. Also, the Tribunal found that the SNDP supporters were more likely to have constituted a threat to him immediately after the fire rather than later and that over time the threat would have dissipated. The Tribunal pointed out at [83] of its reasons, that the property in India was still legally his, and that his mother and sister continued to live there without having been subjected to serious harm, and there was no evidence that other persons associated with the parish church, including the priest, had been subjected to serious harm by the SNDP.

10    Further, contrary to the appellant’s claims, the Tribunal found the Kerala police willing to assist the appellant in relation to the complaints he made to them, and that police protection was available to the appellant.

11    The Tribunal found that there was no real chance the appellant would face persecution for a Convention reason should he return to India.

the federal magistrates court

12    In his application for judicial review filed on 21 February 2012, the appellant relied upon the following grounds:

(a)    The Tribunal constructively failed to exercise its jurisdiction by not considering and giving appropriate weight to the documents provided by the appellant to the Tribunal in making adverse credibility findings against the appellant.

(b)    The Tribunal failed to consider whether or not a Christian activist in India was at risk of harm from radical Hindus, and not able to access effective protection.

(c)    The Tribunal erred in that it failed to give the appellant the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims were plausible.

13    The Federal Magistrate rejected the contention that the Tribunal did not consider and give appropriate weight to the appellant’s documents. The Federal Magistrate found that the Tribunal either accepted the factual propositions which the documents sought to prove, or otherwise had taken the documents into account. Further, the Federal Magistrate noted that the weight to be given to the documents was a matter for the Tribunal. In any event, the Federal Magistrate found the Tribunal’s decision did not make or turn on any adverse credibility finding, and that consequently the ground was not made out.

14    As to ground two, the Federal Magistrate found that the appellant never made a claim before the Tribunal, that generally as a Christian he feared harm from Hindus. The appellant’s claim was founded on the fear of persecution founded upon the burning of the temple. The Federal Magistrate also stated that the appellant’s evidence to the Tribunal to the effect that Christians in Kerala were not generally persecuted, did not support the appellant’s contention.

15    The Federal Magistrate found that ground three invited an impermissible merits review. The Federal Magistrate, in addition, noted that in dealing with the appellant’s credibility, the Tribunal had given the appellant the benefit of the doubt.

16    Accordingly, the application was dismissed.

the appeal

17    In his notice of appeal, the appellant relied upon the following grounds:

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 the RRT.

Ground 1

18    Ground 1 of the appeal is dismissed. First, there was no ground of review before the Federal Magistrate that the Tribunal had acted in a manner which was manifestly unreasonable.

19    Secondly, this is not a case where leave should be granted by the Court to permit the appellant to raise, in effect, a new ground of review which was not raised before the Federal Magistrate. This is because there is no prospect of success of an appeal succeeding on the basis of the proposed new ground of review. The appellant was unable to identify in his oral submissions to the Court any basis for his contention that the Tribunal had acted in a manner which was manifestly unreasonable. A review of the Tribunal’s decision demonstrates that it considered the claims of the appellant, and that it accepted in large measure his account of the factual circumstances which he contended gave rise to his fear of persecution if he was to return to India. However, the Tribunal found that the harm which the appellant feared on the basis of conduct which he was subjected to in India, was not serious harm and that his fears were not well-founded. This conclusion was plainly open to the Tribunal. To the extent, therefore, that the reference to s 91R of the Migration Act 1958 (Cth) in the proposed ground of appeal, was a complaint directed to the Tribunal’s finding that the harm feared by the appellant was not serious harm, such complaint is without merit.

Ground 2

20    The second ground of appeal does not identify any specific error on the part of the Federal Magistrate.

21    The appellant did not during his oral submissions identify any specific error in the manner in which the Federal Magistrate dealt with the three grounds of review in the proceeding before him. In my view, the Federal Magistrate did not err in the manner in which he dealt with those grounds of review. This ground of appeal is dismissed.

22    In the circumstances, therefore, the appeal is dismissed with costs.

Associate:

Dated:    23 November 2012