SZRDB v Minister for Immigration and Citizenship

Introduction 1 This appeal is from a judgment of the Federal Magistrates Court of Australia given on 4 June 2012 at Sydney dismissing the application and ordering the applicant to pay the first respondent's costs in the sum of $4,000. 2 The grounds of appeal to this Court are as follows: 1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 2. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of RRT.

The Tribunal decision 3 The Tribunal gave its decision on 10 January 2012, affirming the decision not to grant the applicant a Protection (Class XA) visa. 4 The Tribunal summarised the written claims of the applicant (to whom I will refer as the appellant); reviewed the audio recording of a Departmental interview attended by the appellant; set out the claims of the appellant at that hearing; identified a number of documents received from the appellant after the hearing; and referred briefly to independent country information concerning document fraud. 5 The Tribunal accepted that the appellant was a citizen of India, as he claimed to be. 6 The appellant claimed to fear harm in India at the hands of a group called the RSS (Rashtriya Swayamsevak Sangh) and other Hindu extremist groups because he was active in the Kerala Catholic Youth Movement (KCYM) and because he was blamed for the conversion of a Hindu girl to Catholicism. 7 The Tribunal accepted that the appellant was a Catholic of the Latin Church. The Tribunal also noted that the appellant's claims to be a fully observant Catholic outside India, attending Mass every Sunday, were unsubstantiated from any external source. The appellant's inability to supply the names of churches in the United Kingdom or Australia where he claimed to have pursued this pattern of worship over a combined period of some four or five years cast doubt on the truth of those claims. 8 The Tribunal then made findings about the appellant's religious activism. The Tribunal made a general comment on the appellant's evidence: "despite the [appellant's] claim that he devoted a considerable part of his youth and young adulthood to religious observance and religious activism, his account of it is notably vague and largely lacking in circumstantial detail." The Tribunal found that the appellant had significantly exaggerated the level of his involvement in the KCYM. 9 As to the appellant's claim at the hearing that he had been involved in preaching the Bible to Hindu and Muslim children in the course of Sunday School and catechism classes which he and others from the KCYM gave, the Tribunal said it had considerable doubt as to the plausibility of the claim that either Hindus or Muslims would permit their children to be present at such overtly Christian events designed for the obvious purpose of conversion. The Tribunal noted also that when the appellant was asked to confirm the claim he shifted ground. 10 The Tribunal referred to a supporting letter provided by a priest but noted that the letter provided no detail. The Tribunal also referred to two certificates but said they clearly added little to the appellant's claims to have been an activist in KCYM. 11 The Tribunal said it was not satisfied that the appellant involved himself in the form of religious activism in India which he claimed. The Tribunal was not satisfied that the appellant did anything to distinguish himself from other Catholics in his area in terms of religious beliefs or activities. 12 In relation to the appellant being instrumental in arranging the marriage of a Christian friend to a Hindu girl who had then converted to Christianity, the Tribunal said the appellant's references to this matter at the hearing were brief, vague and lacking in circumstantial detail. 13 The Tribunal was not satisfied that the appellant was ever involved in the conversion to Christianity of a Hindu girl in a way which caused him to be targeted by Hindu activists or members of her family. 14 In relation to incidents of harm, the Tribunal said that the appellant had made differing and inconsistent claims to have suffered physical harm in India at the hands of Hindu activists. 15 The Tribunal considered the description of an alleged assault and said it was not consistent in its basic elements with the account the appellant gave in his written statement or at the Departmental interview. The Tribunal found that the inconsistency cast strong doubt over the credibility of the appellant's claims about it. 16 At the hearing, the appellant suggested there had been a second incident in which he had been physically attacked. The Tribunal said that the appellant's description of this incident was notably sketchy. The appellant's explanation as to why the incident had not been mentioned by him in his original claims was that he had not specified to his friend who helped in his application how many times he had been attacked. 17 The Tribunal also considered in this context the medical documents submitted by the appellant after the hearing. The Tribunal accepted that they were authentic but they referred to a cardiac problem and later consultations with a gastroenterologist. The Tribunal said none of the latter documents, dated after the first alleged attack, referred to the appellant having suffered an injury. Taken together, the Tribunal was not satisfied that any of the medical documents could be said to provide direct support for the appellant's claims to have suffered harm in India. 18 The Tribunal said it was not persuaded that the appellant ever suffered physical harm in India as he claimed. 19 Under the heading "Failure to seek protection", the Tribunal referred to the appellant having spent some three and a half years in the United Kingdom during which period he had not sought protection as a refugee, including at the point when he was being deported from the United Kingdom. The Tribunal said it had considered the explanations the appellant suggested for this but was not satisfied that they were convincing. The Tribunal said it was not satisfied that it was plausible that had the appellant been forced to take the momentous step of leaving his own country to escape personal harm he would then have allowed himself to be so easily deterred from applying for protection once he had reached a place of safety. The Tribunal found that the appellant's failure to seek protection during the period he was in the United Kingdom cast doubt on the credibility of his claim to have feared harm in India. 20 The Tribunal said that further doubts were raised by the fact that the appellant first arrived in Australia on 21 April 2010 and spent two months in Australia. He did not seek protection during this period but instead returned to India on 22 June 2010, remaining there for eight months before his second visit to Australia. By his own account, the appellant lived for at least part of this period in his parents' home and returned to work in the shop owned by his father. When he was asked about this at the hearing he claimed that his return to India was necessitated by his father's ill-health and the fact that his father wished him to marry. The Tribunal said it was not satisfied that these actions were consistent with those of a person who genuinely feared that if he returned to India he would be killed or seriously injured by his enemies. 21 In summary, the Tribunal was not satisfied that the appellant was, or was known as, an activist member of the Catholic church in his area who was involved in preaching or evangelising among Hindus as he claimed. The Tribunal was not satisfied that the appellant was held responsible for the conversion to Christianity of the Hindu wife of a friend. The Tribunal was not satisfied that the appellant was ever targeted by the RSS or other Hindu extremists groups for the claimed reasons. Nothing had changed since the appellant left India and the Tribunal was not satisfied there was a real chance that the appellant could face harm for those reasons if he returned. The Tribunal accepted that the appellant was a Catholic but was not satisfied, on the basis of the independent country information available to the Tribunal, that there was a real chance the appellant would suffer serious harm for such a reason in his area of Kerala state. 22 The appellant did not claim to fear harm in India for any other reason and no other reason was apparent on the face of the information before the Tribunal.