SZCWB v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2006-10-31|Before: Bennett J

REASONS FOR JUDGMENT 1 The appellant is a citizen of India who made a number of claims before the Refugee Review Tribunal to have a well-founded fear of persecution. The Tribunal noted that, although it encountered some difficulty in ascertaining his claims, they could be categorised as claims to have a well-founded fear of persecution by reason of the appellant's religious beliefs and political opinion. 2 The appellant claimed that he was a target of the government of the day, the Bharatiya Janata Party ('BJP') and that Hindu fundamentalists tried to kill him and put him on the death list. The Tribunal's reasons record that the appellant says that he was attacked by an important member of the Rashtriya Swayamsevak Sangh party ('RSS'), who overheard him speaking about an 'Australian missionary and his family who were burned to death'. The appellant gave details of what happened after that event and claimed that he fled to Mumbai because he feared for his life. He says that his family tried to make a complaint to the police but that the police officer said that the complaint would be taken no further than a discussion with the RSS assailant. 3 The appellant claimed that the police would not assist him because the assailant was able to influence the police. He claimed that his parents house had been attacked by RSS members, that they damaged property and threatened to kill him. The appellant claimed he tried escaping to other parts of India but was noticed and had to leave to avoid suspicion. He moved to a Catholic residence in Madras where he stayed until he could arrange to depart from India. 4 In his statement to the Tribunal the appellant referred to his claim of attack by the RSS and from that statement it was clear that he said that he was a Christian. At the hearing before the Tribunal the appellant claimed to have converted to Christianity. He also claimed that he would be prosecuted under the religions conversion laws. For reasons which follow, his claim with respect to Christianity has some relevance with respect to the application of s 424A(1) of the Migration Act 1958 (Cth) ('the Act'). 5 From the description of the appellant's claims in the Tribunal decision those claims would seem to be first, a claim that as a Christian he would be persecuted by the RSS and secondly a claim that he would be prosecuted under the religious conversion laws in India. It is apparent from the Tribunal's decision and has been clarified by the appellant that these claims relate to his alleged or possible involvement in the conversion of others to Christianity.

The Tribunal decision 6 The Tribunal accepted that the appellant had been assaulted by a member of the RSS. It did not, however, accept that the appellant was denied State protection for a Convention reason. The Tribunal was satisfied, in effect, that the RSS had no continuing interest in the appellant. It was not satisfied that RSS members had walked past his parents vacated family home in his former city because they were seeking his whereabouts. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution by the RSS, for any reason, should he return to India. 7 With respect to the appellant's claims to have converted to Christianity, the Tribunal determined that the appellant had only a remote chance of being prosecuted or otherwise persecuted under the religious conversion laws. The Tribunal did not accept that the appellant had converted to or was even interested in converting to Christianity as claimed. The Tribunal also held that the appellant could safely relocate within India and that it was reasonable to expect him to do so. Accordingly, the Tribunal affirmed the Delegate's decision not to grant a protection visa to the appellant.

The Federal Magistrates Court 8 The appellant sought judicial review of the Tribunal's decision in the Federal Magistrates Court. Federal Magistrate Smith concluded that the Tribunal had fully addressed the appellant's claims to the extent that those claims could properly be distilled from the confusing statements he had made (SZCWB v Minister for Immigration & Anor [2006] FMCA 629 at [17]). 9 The Federal Magistrate also considered whether s 424A(1) of the Act had been breached, primarily in relation to the Tribunal's finding on relocation. His Honour concluded that he did not need to address that question as there had been an independent basis for the Tribunal's decision within the reasoning of SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at [231] (at [19]). His Honour so held because he considered the principal conclusion of the Tribunal to be that the appellant did not have a well-founded fear of persecution for Convention reasons if he returned to the place of his former residence (at [18]). 10 His Honour considered the matters that were raised before him by the application for review to the extent that particulars of those grounds were provided and determined that the Tribunal's decision was not affected by jurisdictional error. I note in particular that his Honour made specific reference to the suggestions made by the appellant that he would provide more details and supporting evidence to the Tribunal, which did not eventuate before the Tribunal or as particulars in his application for review (at [6]).

Grounds of appeal 11 The appellant appears in this Court in person assisted by an interpreter. His notice of appeal raises three generalised grounds for which no particulars are given. Those grounds may be summarised as follows: · The Federal Magistrate failed to find jurisdictional error in the Tribunal decision. · The Federal Magistrate did not consider the appellant's application. · The Federal Magistrate failed to consider whether Muin v Refugee Review Tribunal (2002) 190 ALR 601 applies to the present case. 12 I informed the appellant repeatedly that this was his appeal and gave him every opportunity to explain what he said was wrong with the Tribunal's decision and the Federal Magistrate's decision. He was unable to point to anything and informed the Court that, because of other difficulties in his life, he had never arranged to have the Tribunal's decision translated. The only matter that he raised was a request to have more time to obtain further evidence from India concerning the merits of his claim. That, of course, is not relevant to the appeal before me. 13 The appellant did file an affidavit sworn 4 May 2006 which he filed in this Court. That affidavit reiterates factual matters and repeats the assertion that the Federal Magistrate did not consider his application. It does not provide any detail to support the alleged grounds of appeal. 14 From a review of the Tribunal decision it is apparent that the Tribunal considered all claims made by the appellant linked to his membership of a social group and his religious beliefs, including claims arising out of his status as a Christian, as a Muslim (to the extent that that was applicable) and as a person targeted by the RSS. 15 Clearly, the Tribunal was entitled to rely upon information given by the appellant to the Tribunal as part of his application for review. The Tribunal also, however, referred in its reasons to information that had been provided by the appellant in his protection visa application. I have considered whether there was a contravention of s 424A(1) of the Act for that reason. 16 The Tribunal referred to the fact that the appellant had claimed in his application for a protection visa to be a Muslim whereas at the hearing before the Tribunal he denied ever having stated that he was a Muslim. When that matter was pointed out to the appellant he did not respond. However, that absence of response did not form part of the Tribunal's reasons. The Tribunal noted that the appellant was 'very vague about his alleged conversion'. The Tribunal then commented: 'that said' and dismissed the appellant's claim that he would be prosecuted under the 'religious conversion laws'. 17 The appellant's claim before the Tribunal was that he was a Christian and that he feared the RSS for that reason. 18 The Tribunal did not accept that the appellant had converted to, or was even interested in converting to, Christianity as claimed. However, its reasons for so finding were the appellant's 'virtually non-existent knowledge of Christianity' and his failure 'to seek instruction, attend church, or otherwise pursue his alleged interest in Christianity since his arrival in Australia'. 19 The country information refers to the fact that the religious conversion laws relate to conversion of Hindus. The appellant did not claim that he had been a Hindu who had been converted. 20 The appellant's earlier claim to be a Muslim formed no part of the Tribunal's reasons. The question of whether or not he was a Muslim originally was not relevant. The appellant claimed that he would be prosecuted under the religious conversion laws. He did not claim to have been forcibly converted himself and I fail to see the relevance of the religion from which he converted. That seemed to play no part in the Tribunal's reasons. 21 To the extent that his claim was that he would be prosecuted in any event under the anti-conversion laws, the Tribunal considered that claim and the question whether he had ever been a Muslim was not relevant. 22 To the extent that the appellant's claim related to difficulties to which he would be subjected if he had himself attempted to convert others to Christianity, the appellant had denied having taken part in that activity. 23 Accordingly, the fact that, in his statement in the application for a protection visa, the appellant stated that he was a Muslim seemed to play no part in the Tribunal's reasons. I am satisfied that the Tribunal's references to that fact formed no part of the reason or part of the reason for the Tribunal affirming the decision under review. It was not information that the Tribunal was required to give to the appellant pursuant to s 424A(1) of the Act. 24 The Tribunal also found that the appellant could relocate within India. The Federal Magistrate did not consider whether s 424A had been breached with respect to the relocation finding. That finding was a separate and independent basis for affirming the Delegate's decision (MZXGR v Minister for Immigration & Multicultural Affairs [2006] FCA 1167 at [7]). It follows that I see no error on the part of the Federal Magistrate in not considering whether there had been a breach of s 424A with respect to the finding on relocation. 25 No particulars or evidence are given in support of the appellant's claim that Muin applies. Neither the Minister nor the appellant can point to anything in support of that claim, which cannot be sustained.

Conclusion 26 Nothing in the grounds of appeal raise any error on the part of his Honour. Broad and sweeping assertions do not constitute proper grounds of appeal. There is nothing that the appellant, counsel for the Minister or the Court, has been able to identify to give substance to those grounds. It follows that the appeal must be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate: Dated: 13 December 2006 The Appellant appeared in person. Counsel for the First Respondent: T Wong

Date of Hearing: 31 October 2006

Date of Judgment: 31 October 2006

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (4)