SZNHF v Minister for Immigration and Citizenship

Federal Court of Australia|2010-02-24|Before: Mr P, Bennett J

REASONS FOR JUDGMENT 1 The appellant is a citizen of India who arrived in Australia on 9 July 2008. On 19 August 2008 he lodged an application for a protection visa. A delegate of the Minister refused that application. The delegate's decision was upheld by the Tribunal on a review of the decision. The appellant applied to the Federal Magistrates Court which dismissed his application. 2 The appellant claimed that he was a Catholic who had participated in the activities of the Catholic Youth Movement (CYM) while at school. He claimed that there were clashes between the Bharathiya Janatha Party (BJP) and the Communist Party and that the Catholics supported the Communist Party. He claimed that in April 2001, while he was the unit president of the CYM, there was an attack against him and his associates and one of his friends was killed. He stated that he spent several days in hospital for treatment. 3 The appellant claimed that in May 2001 his parent's house was attacked. He travelled to Ernakulum where he worked as a driver until BJP activists came to the office of his employer and destroyed the office. He said that he was fired and as he could not find another job, he travelled to Gujarat in December 2001. He remained there until 2004 when there was a serious attack against the school where he worked and he went to Andhra Pradesh. He stated that he could not work freely as he was a target of the BJP RSS workers. He returned in November 2007 to his native place, where he married. However, he was living in fear. He said that the government in Kerala is led by the Communist Party which has started proceedings against the educational institutions of the Christians and other minority communities, and has interfered with the admissions of students and appointments of teachers and staff at educational institutions. This has, he said, resulted in protests by the Catholics, such that the government has now 'turned against the Catholics' and the situation is now tense. He reported attacks against minority communities including Christians.

The Tribunal's decision 4 The Tribunal found that the appellant lacked credibility, noting that his oral evidence changed in many respects throughout the hearing and that there were a number of significant inconsistencies between his oral evidence to the Tribunal and his written claims. The Tribunal noted, in particular, that the appellant could not recall the date of the May 2001 attack, despite setting out the date and time in his written claims and that the reason given to the Tribunal for being attacked was different from his written statement. 5 The Tribunal noted that a number of important claims were raised for the first time at the hearing, leaving the Tribunal to conclude that his claims were fabricated. At the hearing, the appellant raised for the first time a claim about his participation in a court case as a reason for him being targeted. He gave different dates regarding the attack at his employer's office in Ernakulum. The appellant mentioned for the first time at the hearing that his wife received threats that were also directed against him. He raised new claims regarding telephone calls to his employer and his physical assault in November 2004. 6 Further, the Tribunal noted that he remained in Gujarat and in his employment until 2004, despite his claims that those who wished to harm him were aware of his place of residence, indicating to the Tribunal that he did not have a genuine fear of persecution. His evidence with respect to his claims about attending court to give evidence about his attackers was, the Tribunal held, untruthful, nonsensical and fabricated to further his claims. He gave inconsistent evidence as to where he stayed when he returned to his home village. Further, the appellant was unable to explain why no attempt had been made to harm him during his presence at his village and at his parent's home, given the continuous threats that he alleged had been made against him and his family since 2001. 7 The Tribunal was of the opinion that the inconsistencies and deficiencies in the appellant's evidence indicated that he was not truthful. It rejected his claims to fear harm, finding that there was no real chance that he would be persecuted for any Convention reason. Further, the Tribunal held that while there was tension between religious groups in Kerala, there was a very large Christian population in that state and there was no real chance that the appellant would be persecuted for the reason of his religion. 8 The Tribunal found that it was reasonable for the appellant to relocate because he had, in the past, lived in three different states where he was able to find employment and support himself. His willingness and ability to do so suggested to the Tribunal that it would be reasonable for him to relocate in the future.

The Federal Magistrate's decision 9 In his application to the Federal Magistrates Court the appellant submitted that: 1. The Tribunal did not give him information it held about the Kerala state before the hearing in breach of s 424A of the Act. 2. The Tribunal denied the appellant procedural fairness by reaching the adverse conclusion that the appellant's claims were implausible without giving him an opportunity to be heard in respect of that matter. 3. The appellant satisfied the four key elements of the Convention definition of refugee. 4. The Tribunal failed to consider an integer of the appellant's claims in failing to consider whether or not a Christian activist in India was at risk of harm from radical Hindus. 10 As to the first ground, the Federal Magistrate noted that the country information was excluded from s 424A by s 424A(3)(a). His Honour found that the Tribunal took up with the appellant all matters of concern and that the s 424A letter was written before the hearing commenced. The Federal Magistrate found that the conclusions which the Tribunal reached were open to it on the known material. Raphael FM dismissed the third ground as a request for impermissible merits review. 11 As to the fourth ground, his Honour found that the claim had not been raised by the appellant. His Honour noted that the appellant never described himself as a Christian activist before the Tribunal, although such a claim could be implied from his claimed association with the CYM. The Federal Magistrate noted that the Tribunal found that while he might have been a member of the CYM, he was not the president of his local branch as he had claimed and, thus, he could not really fall within the definition of an activist. Moreover, the Tribunal did not consider that he was at risk from the BJP, the RSS or Hindus because of his religion. The Federal Magistrate held that there was no necessity for the Tribunal to consider this particular claim, but was of the opinion that if there were such a need, it had been fulfilled. His Honour also considered and rejected a number of claims made by the appellant at the hearing because they amounted to arguments on the merits of the matter.

The appeal 12 The appellant has appeared in the appeal in person assisted by an interpreter. His grounds, as set out in his notice of appeal are: 1. The single judge of the Federal Magistrates Court, in his Honour's judgment delivered on 26 November 2009, failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth). 2. The learned Federal Magistrate had dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. 3. His Honour failed to find that the Tribunal did not consider UNHCR section 4, 5, 8, 9, 10 and did not consider at all cruelty against the humanity, and, therefore, made error of law and jurisdictional error. 13 The first two grounds amount to no more than a bare assertion of legal and factual error. The first ground does not identify any matter alleged to found the broad assertions. The second ground does not identify any matter of either a legal or factual nature capable of amounting to jurisdictional error. The only matters raised by the appellant in this appeal is that the Tribunal did not believe what he said and did not believe that what he said was true. Those matters are matters of fact for the Tribunal and not subject to review. 14 The third ground of the appeal was not raised below. The Minister submits that leave should not be given to raise it on appeal, in particular because, he submits, it lacks merit. I assume that the references to the UNHCR sections are references to the Office of the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status (the Handbook). The Minister submits, and I accept in the absence of any submission to the contrary, that those sections are not a mandatory relevant consideration in the Peko-Wallsend sense (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 per Mason J at 39-42; see also Semunigus v Minister for Immigration & Multicultural Affairs [1999] FCA 422 at [2]-[13] per Finn J and the authorities referred to therein). Further, there is no evidence in the Tribunal's reasons that the Handbook, or the material in it, was before the Tribunal or that the appellant asked the Tribunal to take it into account. The appellant confirmed at the hearing that he had not presented it to the Tribunal. There is no evidence as to why the material in the Handbook is relevant to the appellant's claims. It is for an applicant to provide evidence and arguments to the Tribunal in support of his or her claims. There is no reason advanced as to why the Tribunal should have for itself consulted the Handbook. 15 As to the aspect of the third ground referring to cruelty against the humanity, the appellant said that what he meant by that were the incidents of persecution of himself and his family as set out by him to the Tribunal. He did not point to any particular aspect of what he said to the Tribunal that the Tribunal failed to consider. On the face of the Tribunal's reasons, the Tribunal did consider the claims put forward by the appellant. 16 The appellant has not made out any of his grounds of appeal. He has not established jurisdictional error on the part of the Tribunal, or error on the part of the Federal Magistrate. It follows that the appeal should be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

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