SZNOC v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellants are citizens of India who arrived in Australia on 4 March 2008. They lodged applications for protection visas which were refused by a delegate of the Minister. They applied to the Tribunal for a review of that decision and the Tribunal upheld the delegate's decision. An application to the Federal Magistrates Court was dismissed. The appellants claimed to be Latin Catholics and members of the Mukkuva caste from Kerala in India and claimed to fear persecution on the basis of their religious belief and caste membership. 2 Without going into detail, part of the basis of the appellants' claim to persecution was that they feared a Hindu extremist group and they claimed that they had been persecuted, threatened and attacked. They claimed that the male appellant was stabbed, that the female appellant was assaulted and that they were hospitalised for some nine days. They claimed that they reported a local group leader of that group to the police and that the police filed a case against this person. However, they claimed that when they went to court in connection with the case, members of the group threatened that they should withdraw the case or they would be killed. 3 The appellants claimed that they decided to leave Kerala and that while they reported the incident to the police and government, the response was inadequate. They also claimed that they could not relocate outside Kerala. 4 The Tribunal accepted that the appellants were Latin Catholics from the town they claimed to have come from in Kerala and that they were members of Mukkuva caste. However, the Tribunal did not accept that the appellants were witnesses of truth, being satisfied that they had 'created their claims in order to obtain the visas sought'. In particular, the Tribunal noted a number of inconsistencies in their evidence and claims and the failure by the appellants to explain these inconsistencies. It is not necessary to go into all of the details of the Tribunal decision for the purposes of this appeal except to say that the Tribunal comprehensively dismissed the appellant's claims and did not accept that they had a well-founded fear of persecution for reasons of their real or imputed political opinion or religion or for any other Convention reason if they returned to India. 5 In the notice of appeal from the Federal Magistrate's decision, the appellants raise three grounds which are: 1. jurisdictional error, 2. breach of natural justice, and 3. breach of section 424A of the Migration Act 1958 (Cth) (the Act). No particulars are given. These grounds as framed in the notice of appeal are mere assertions and as such are not made out. 6 In written submissions, the appellants raised what may be said as a particular of jurisdictional error. Other matters raised in the written submissions go to merits review, such as an assertion that the Tribunal did not believe the appellants although they gave evidence to prove their claims. In essence, the matter raised in the written submissions is that the Tribunal did not give sufficient weight to a report of a psychologist as to the female appellant's mental state (the STARTTS report). The STARTTS report was relied upon on two bases: 1. that acceptance of the conclusion of the female appellant's mental state necessitated acceptance of her stated reasons for that mental state being the alleged persecution in India; and 2. as an explanation for any inconsistencies in the female appellant's evidence at the Tribunal hearing being due to her psychological condition. 7 The appellants appeared in person at the hearing of the appeal, assisted by an interpreter. They raised an additional matter at the hearing as a particular of the asserted denial of natural justice. The appellants say that they sought extra time from the Tribunal to present material, which extensions were refused.