SZNHN v Minister for Immigration and Citizenship

application for leave to appeal 1 By way of an application filed 11 August 2009, the applicant seeks leave to file and serve a Notice of Appeal outside the time limits prescribed by Order 52 Rule 15(1) of the Federal Court Rules 1979. 2 The draft Notice of Appeal seeks to challenge the orders and judgment of a Federal Magistrate given 15 July 2009 (see SZNHN v Minister for Immigration and Citizenship [2009] FMCA 702), dismissing an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 2 February 2009. The decision of the Tribunal affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant the applicant a protection visa. 3 The Minister opposes that application for reason of futility on the basis that no error in the reasons for judgment of the Federal Magistrate has been identified and there is no other ground of appeal with any apparent prospect of success.

prior applications 4 The applicant, who is a citizen of India, arrived in Australia on 18 June 2008 having been granted a Tourist (Class TR) subclass 676 visa. 5 On 17 July 2008, the applicant lodged a protection visa application (PVA) with the Department of Immigration and Citizenship. In a statement accompanying his PVA, the applicant claimed to be an active member of the Dravida Munnetra Kazhagam political party (DMK) who actively support the rights of the Dalit caste. As a result, the applicant was persecuted and assaulted by the higher castes who disapproved of his support for Dalit rights, particularly his participation in the demolition of a wall between high-caste and scheduled caste areas in a nearby village. 6 The Federal Magistrate has provided the following helpful analysis of both the delegate's and Tribunal's consideration of the applicant's claims at [3] to [11] of her reasons for judgment: [3] The applicant attended a Departmental interview and provided further information, in particular about the wall and his presence when it was demolished in March/April 2008. His application was refused by a delegate of the first respondent who found that the applicant's claims were vague, unconvincing and unsubstantiated by any evidence. The delegate found, in any event, that State protection was available and that relocation was a viable alternative. [4] The applicant sought review by the Tribunal. He did not provide any additional statement or supporting documentation to the Tribunal. [5] The Tribunal invited the applicant to attend a hearing on 18 December 2008. He did so and provided the Tribunal with a copy of his passport. By letter under s.424A of the Migration Act 1958 (Cth) of 24 December 2008 the Tribunal put to the applicant information consisting of certain inconsistencies between his responses to the delegate in the Departmental interview and in his protection visa application and inconsistencies between certain independent country information and his claims. The applicant was given until 21 January 2009 to respond and advised that if he could not respond by that time he may ask the Tribunal in writing for an extension of time. On 20 January 2009 the applicant wrote to the Tribunal providing comments as requested. He claimed that he was deeply traumatised being a victim of persecution and had stress and ongoing difficulties including recollection of past incidents, confusion and memory loss. He sought forgiveness for inconsistencies between his evidence to the Department and the Tribunal and claimed that what he said in his initial statement was true and correct. [6] In its reasons for decision the Tribunal set out the applicant's claims in his application, the Departmental interview and at the Tribunal hearing as well as the s.424A letter and the response and referred to relevant country information, in particular in relation to the wall between the high caste areas and the Dalit areas. [7] In its findings and reasons the Tribunal concluded that it did not find the applicant to be credible on some key aspects of his claims. It was not satisfied that he left India because of the fear of persecution described in his application and evidence before the Tribunal. It set out inconsistencies, implausibilities and contradictions that led it to conclude that the applicant was not truthful or credible, including inconsistent evidence from him about whether he had a membership card for the DMK and his failure to provide any documentation supporting that claim or his claim to have been hospitalised. In those circumstances the Tribunal was not satisfied that the applicant was a member of the DMK. It was of the view that if the applicant had been assaulted as claimed and admitted to hospital and treated for two days he would have provided such documentation. It was not satisfied that he was assaulted or treated for an assault as claimed. [8] The Tribunal also had regard to inconsistencies between the applicant's description of the caste wall and the independent country information in relation to when the wall was erected and its dimensions. The applicant had stated that the wall was erected in 2008. Country information stated that it was erected in 1989 or 1990 and that it was 12 feet high and 600 metres long. The applicant claimed it was about his height (5ft 8 inches) and 200 - 300 feet long. The Tribunal considered the applicant's response when these issues were raised with him during the hearing. The Tribunal found the applicant's explanations relating to this incorrect information (that the police would not allow him to go there and that he was only interested in the demolition) to be unpersuasive. [9] It also had regard to inconsistencies in relation to whether and how the applicant had reported a claimed assault to police and as to what occurred in the incident when he claimed that a group of people had come to his family home after he had left India. The Tribunal was not satisfied that the applicant's wife was approached or questioned or harmed. The Tribunal also had regard to the applicant's evidence that he continued to live at his home address prior to leaving India and continued working for the party after a claimed assault. It was of the view that if he had been in fear as claimed, he would not have continued to live at his home address in India. [10] These matters collectively led the Tribunal to find that the applicant was not credible. It rejected his claim he was a member of the DMK in India and therefore all the claims that flowed from that claim, including any claims in relation to involvement in demolition of the wall, injury, assault and warnings and that he departed India because of a fear of persecution. [11] The Tribunal considered the applicant's claim in response to the s.424A letter that he was suffering from stress, was deeply traumatised and had difficulty recalling what had happened. However it also had regard to the fact that when it had asked the applicant questions in the hearing it would expect him to answer in relation to the wall, it was evident that he knew very little about it. It was of the view that his lack of knowledge in relation to the wall was not because he was traumatised or had difficulty recalling, but because he had not seen it and had not been involved in activities in relation to the wall or its destruction. It was the Tribunal's view that the inconsistencies arose because the applicant had forgotten what he mentioned in his protection visa application and in his Departmental interview. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he returned to India."