SZNOM v Minister for Immigration and Citizenship

Federal Court of Australia|2009-11-03|Before: Collier J

REASONS FOR JUDGMENT 1 This is an appeal against the decision of Cameron FM delivered on 9 July 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 8 April 2009. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND 2 The appellant is a citizen of India who arrived in Australia on 7 July 2008. On 21 July 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 1 October 2008. On 23 October 2008 the appellant applied to the Tribunal for a review of that decision. 3 The appellant claimed that he and his immediate family were Roman Catholics. He claimed that he joined a charitable trust called in Vision in Action, becoming the secretary. He stated that some people misinterpreted the work of the trust in the slums as an attempt to convert Hindus to Christianity. He claimed that on one occasion he was attacked by a number of Hindus and his left arm was cut, resulting in his hospitalisation. He stated that after this incident he left New Delhi and went back to his village, engaging in charitable work there. Among other things he helped drug addicts and alcoholics go to the Divine Retreat Centre run by Christian missionaries. The appellant claimed that he faced a negative reaction from Hindus, the RSS and the BJP as they believed that he was converting people from Hinduism to Christianity. He claimed that as a result there were religious riots and the Divine Retreat Centre was raided. He claimed that he and his family were attacked and he was again hospitalised. Fearing for his life he fled the country.

PROCEEDINGS BEFORE THE TRIBUNAL 4 The Tribunal accepted that the appellant became involved in a small group of six to seven people engaged in charitable works in Delhi, that members of a local Hindu community in Delhi complained about the group's activities, and that he may have been verbally abused. The Tribunal, however, did not accept that that the appellant was attacked and hospitalised as claimed, or that he was threatened with serious harm while working in Delhi. The Tribunal found that the complaints made by the Hindu community and the verbal abuse did not amount to persecution within the Convention definition. Further, the Tribunal found that the appellant's involvement in "Vision in Action" was fairly minor and once he left New Delhi he did not continue to have any interest in the group. 5 The Tribunal accepted that the appellant returned to Kerala in May 2007 and may have been involved in some charitable work there. However it formed the view that his claims of charitable work were highly exaggerated and that his charitable work in Kerala was minimal, if at all. It found that the appellant's evidence relating to the claimed attacks in Kerala was confused and unsatisfactory. The Tribunal accepted that the appellant and his family may have been assaulted or threatened but did not accept that it was for reasons of his charitable activities or his religion. 6 The Tribunal did not accept that the appellant had been assaulted or mistreated in India for reasons of his association with a Christian based charity or imputed conversion activities. It found that he only had a minor role in a small charitable organisation in Delhi and that when he returned to Kerala in 2007 he did not continue to work for that organisation. The Tribunal did not accept that he was perceived as being involved in the conversion of Hindus to Christianity. The Tribunal did not accept that the appellant would face a real chance of persecution if he returned to India.

APPLICATION BEFORE THE FEDERAL MAGISTRATES COURT 7 On 5 May 2009 the appellant filed an application for judicial review of the Tribunal's decision. In his application the appellant contended that: 1. The Tribunal did not provide him with the particulars of the independent country information it relied on. 2. The Tribunal failed to take into account certain relevant considerations or "integers" central to his claims. 3. The Tribunal failed to carry out its review function and to exercise its jurisdiction. 4. The Tribunal erred in that it ought to have held that he was a refugee within the meaning of the Act. The Tribunal failed to give him the benefit of the doubt in circumstances where it ought to have done so. 5. He satisfied the four key elements of the Convention definition of a refugee. 8 In relation to the first ground, Cameron FM noted that independent country information fell within the exception to the obligation in s 424A(1) of the Migration Act 1958 (Cth) ("the Act") contained in s 424A(3)(a) of the Act and therefore the Tribunal was under no obligation to notify the appellant of the information in question. Secondly, his Honour stated that the fact that the Tribunal did not draw from the appellant's various allegations, of having been attacked, threatened or pursued by religious or political Hindu activists, the conclusions which he pressed upon it did not mean that it failed to consider that information. His Honour was satisfied that the appellant had not articulated any claim relating to his prominence as a Christian and that such a claim did not arise clearly from the material before the Tribunal. 9 His Honour stated that the third ground was similar to the second ground and therefore, for the reasons discussed in connection with the second ground, found that the allegation disclosed no jurisdictional error. Fourthly, his Honour noted that the Tribunal paid heed to the appellant's claims and allegations, weighed them, but disbelieved them. Therefore there was no occasion for the appellant to be given the benefit of the doubt. 10 Finally, his Honour was satisfied that the Tribunal had clearly considered the appellant's claims to be a refugee and had proper regard to them; that it had correctly understood the Convention test; and that it had correctly considered the future harm which the appellant may suffer upon a return to India, but had rejected his claims. 11 Having found that the Tribunal decision was free from jurisdictional error, his Honour dismissed the application for review.

APPEAL TO THIS COURT 12 By Notice of Appeal filed on 28 July 2009, the appellant raised the following grounds of appeal against the decision of Cameron FM: 1. The single Judge of the Federal Magistrate court in his Honours judgment delivered on 9 July 2009 failed to find error of law, jurisdictional error, breach of procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth). 2. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. 3. The Tribunal in making its determination failed to record in decision in accordance with s 430 of the Migration Act. Particular: (a) the Tribunal made no finding as to the extent or nature of persecution suffered by the appellant; (b) the Tribunal however found that any persecution suffered was not for any Convention reason but did not give reasons for this finding; (c) the Tribunal failed to record the material facts for the reason referred to above. 13 At the hearing this morning there was no appearance by the appellant. I asked the Court officer to call the matter outside of the courtroom but there was no response by the appellant. From the bar table Ms Johnson of Sparke Helmore for the Minister said that her firm had received a telephone call yesterday from a person purporting to be a friend of the appellant and claiming that the appellant was too ill to attend Court. Ms Johnson then tendered a copy of a medical certificate which appeared to be signed by a medical practitioner in the ACT stating that the appellant was "in my opinion, suffering from [illegible] and will not be fit for duty from 2 November to 4 November". In my view this certificate is unsatisfactory and insufficient to excuse the appellant from attendance at Court today. I note that no medical certificate appears to have been provided to the Registry of the Federal Court. 14 I adjourned Court to allow my associate, with the assistance of the interpreter, to attempt to contact the appellant. Despite repeated attempts there was no answer by the appellant. 15 Ms Johnson for the Minister indicated that, in relation to the substantive issues before the Court, she proposed to rely on the written submissions already filed. 16 In my view it is both possible and appropriate for me to determine this matter in the absence of the appellant. I propose to do so now.

CONSIDERATION 17 In relation to the grounds of appeal before me I make the following findings.

Ground 1 18 The first ground of appeal is regrettably vague and unparticularised. I am unable to discern any meaning from its terms, and reject it.

Ground 2 19 Similarly, the second ground of appeal is unparticularised to the point of being meaningless. The "legal and factual errors contained in the decision of the Refugee Review Tribunal" are not identified. I also reject this ground of appeal.

Ground 3 20 In ground 3 the appellant raises the question of compliance with s 430 of the Act. Section 430 provides: (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based. (2) A decision on a review (other than an oral decision) is taken to have been made on the date of the written statement. (3) Where the Tribunal has prepared the written statement, the Tribunal must: (a) return to the Secretary any document that the Secretary has provided in relation to the review; and (b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based. 21 In Applicant 1507/2003 v Minister for Immigration and Multicultural Affairs [2007] FCA 290 at 19 Spender J observed: the obligation to provide a statement of reasons imposed by s 430 is one which follows the making of the decision. Any failure to provide reasons in a relevant way, while constituting a breach of the obligation imposed by s 430, does not amount to jurisdictional error in the making of the decision 22 Accordingly, even assuming that the Tribunal had breached s 430 this would not provide a basis for judicial review. 23 In this case however I am not satisfied that there has been a breach of s 430 in terms of the specified particulars. An examination of the Tribunal's decision demonstrates that the Tribunal prepared detailed reasons for decision in which it made findings on material questions of fact and carefully and extensively reviewed the evidence before it. In particular, the Tribunal examined carefully the appellant's evidence forming the basis of his claims of previous persecution and his fear of persecution in the future, and concluded after this consideration that the appellant would not face a real chance of persecution for reasons of his Catholic faith should he return to Kerala (in particular, at para 94 of the Reasons for Decision). In my view there is no basis for the appellant's claims that the Tribunal provided no reasons for this conclusion - ample reasons were provided by the Tribunal in its record of decision. 24 The third ground of appeal cannot be substantiated. 25 No reviewable error in the decision of the Tribunal has been demonstrated, nor any error in the decision of the learned Federal Magistrate. The appropriate order is that the appeal be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate: Dated: 3 November 2009 Solicitor for the Appellant: The Appellant did not appear

Solicitor for the Respondents: Ms N Johnson for Sparke Helmore

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