SZDHN v Minister for Immigration - [2006] FMCA 623

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDHN v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 623

MIGRATION – RRT decision – Indian claiming persecution for Christian activities – disbelieved by Tribunal – no error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Applicant:

SZDHN

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1084 of 2004

Judgment of:

Smith FM

Hearing date:

20 April 2006

Delivered at:

Sydney

Delivered on:

20 April 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms S Mason

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1084 of 2004

SZDHN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 14 April 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 February 2004 and handed down on 23 March 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s powers under s.483A are the same as those of the Federal Court under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have authority to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia on a temporary business visa in June 2003. On 3 July 2003 an application for a protection visa was lodged for him. The forms do not reveal the name of the person who assisted him. Attached to the application was a typed statement explaining his reasons for seeking protection in Australia against his return to his country of nationality, India.
The statement said that he came from Tamil Nadu in India, and “I come from a Christian family”. He said he had become “involved with the politics of Congress actively to protect the rights of Christian minorities in India”. During the 1990s, “I, along with my other family members and friends started participating different demonstrations in protesting the BJP’s plan to attack our holy places”. He referred to organising a procession in 1995 “after an attack on our priest”. He said during 1998 “some Hindu extremists started ridiculous fundamentalist activities in my own area”, and he was involved in rallies protesting against that group. He said:
E.… In protest, the local Hindu people subsequently attacked one of our old Church and destroyed it. A big riot had been continued for few days and several Hindu and Christian people were killed. Some of my close friends were arrested by the police. Later, I came to know that the local Hindu extremist filed a case against me in the court for organizing a violent procession and for killing.
F.During 1999 when I was visiting one of my friends house, some fanatic (who knew me earlier) again attacked and severely tortured me publicly. Law enforcing agency did not help me. In this relation, US State department had issued various reports, which clearly portrayed the situation of Indian law enforcing agencies. In reality, from 1990 to 2002, I could not move openly, even, in my own area and faced death risks and my human right had been violated severely. I always tried to report the police but they refused to take my first information report (FIR) and often threatened for my activities. In several occasions, they injured me and I was hospitalized. The fanatic groups often attacked the homes of our supporters and burnt them.
The applicant did not provide the Department of Immigration, nor subsequently the Tribunal, with any corroboration of his claims. A delegate refused the application on 29 July 2003.
An application for review was filed with the Tribunal on 21 August 2003. No agent was appointed, and the application merely attached the applicant’s previous typed statement. At some point subsequently, the applicant gave the Tribunal a handwritten document dated 7 November 2003, which essentially repeated most of the earlier statement.
The applicant attended a hearing of the Tribunal on 24 November 2003. No transcript of the hearing is in evidence before me, but a description is given by the Tribunal in its reasons. The applicant told the Tribunal that he was a Roman Catholic and attended St Anthony’s Church in Trichy. He told the Tribunal he had been a member of that congregation for three months, but did not go to church often “as he has business”.
The Tribunal described its questioning of the applicant to test his knowledge of the Christian calendar:
When asked the significance of Easter he stated that it is 25 December and is celebrated on a grand scale. When asked the significance of Christmas he stated that on Christmas day everybody goes to Church and prays and there is a procession of the statues of Jesus and Mary. They light crackers and everybody wears new clothes and they give sweets to the poor children. When asked what was important about 25 December he stated he does not know, it was only after 1992 he got involved in the religion. When again asked about the significance of Easter he stated they do not celebrate Easter.
When put to him the Tribunal had difficulty understanding he was a Christian, he stated he was actually a Hindu and only recently became converted. He then stated he was converted to Christianity when his grandfather converted. He did not take an interest in Christianity until 1987. When he was at school he was a Christian but did not take an interest in the religion. He only took an interest in religion after 1992. He took [a Western name] and became a bit attached to the Christian religion. He got involved in the Christian religion in 1990 when there was a problem with a mosque in India and then they attacked these churches here and there.
The Tribunal also described further questioning of the applicant concerning his practice of his claimed faith, and his claim about the attack on a church in 1998 and the subsequent riot.
In its statement of reasons, the Tribunal referred to background information consulted by it about the situation of Christians in India and in Tamil Nadu in particular.
Under the heading “Findings and Reasons”, the Tribunal summarised the applicant’s claims:
The applicant claims he is a Christian, identified as a ‘Christian fanatic’ by his attackers, who has been attacked and harmed since 1992 for his religion by the BJP, his Hindu relatives, the RSS and other Hindu extremists.
The Tribunal then stated its conclusion:
I do not accept the applicant is a Christian. I am satisfied he has created his claims in order to obtain the visa sought.
The Tribunal explained this conclusion by referring both to the applicant’s unsatisfactory answers to the Tribunal concerning his knowledge of Christian doctrine and celebrations, and the absence of country information corroborating in particular the claimed significant events of November 1998. The Tribunal made clear findings which, in my opinion and notwithstanding some syntactical problems in the first sentence, rejected all the applicant’s refugee claims. It said:
On the evidence before me, I am satisfied the applicant is not a Christian or that anyone regards him as a Christian. Therefore I am satisfied he could not have been identified by any person or group as a ‘Christian fanatic’ or a Christian. It follows I do not accept he was involved in Christian rallies in 1992 or 1995 or November 1998 and I do not accept that he was attacked in his home in 1999 by persons who had identified him from his involvement in the 1998 rally. It follows I do not accept he was assaulted, arrested, tortured, harmed or legal proceedings were commenced because of his involvement in a procession or because of his religion or imputed religion.
The Tribunal said in relation to the applicant’s reference to his membership of the Congress Party:
As for his claim he was attracted to the Congress Party nothing turns on it. The Congress Party is in alliance with the ruling party of Tamil Nadu. The applicant does not claim to have a profile in the party or that any adverse political or religious opinion was imputed to him because of his involvement in this political party.
I am therefore satisfied the applicant did not suffer any harm in India for a Convention related reason, that is his claimed Christianity. The applicant has not claimed to fear persecution for any other Convention reason and none is raised on the evidence before me.
The Tribunal said: “I am satisfied the applicant is a Hindu from Tamil Nadu, India”, and said it was not satisfied that he had a well‑founded fear of persecution. It said: “I am satisfied the applicant is able to return to India”.
I have considered the Tribunal’s procedures and reasons leading it to affirm the decision of the delegate, and am unable to identify any jurisdictional error affecting its decision.
The applicant has filed one document in the Court, being his original application which recites five grounds for the application:
1.The Tribunal erred in law by its failure to make a finding in relation to the registration of false cases by police against the applicant.
2.The Tribunal was unreasonable in insisting that all incidents involving injury and attacks against Christians would have been known to agencies such as the US State Department, the Australian Department of Foreign Affairs and Trade, the United Kingdom Home Office and UNHCR.
3.The Tribunal erred in law by applying a wrong standard for determining the well‑founded fear of persecution.
4.The Tribunal’s finding that the applicant was a Hindu from Tamil Nadu is erroneous as the Tribunal failed to consider that some of the replies given by the applicant during a hearing on 24 November 2003, stemmed from his poor command of English language and poor interpreting by the interpreter assigned to him.
5.The Tribunal failed to address the claims by the applicant that he was attacked and tortured by Hindu fanatics in 1999. It was a central part of the applicant’s claims and due to the Tribunal’s failure to make a finding on this issue it fell into jurisdictional error.
The applicant has not attempted to elaborate these grounds in written submissions, and had no oral submissions to make to me at the hearing today. He applied for more time to prepare submissions, however, I refused this request. I noted that his application has been before the Court since July 2004 and that, in my opinion, the applicant had more than enough time to prepare his arguments.
In relation to grounds 1 and 5 of the application, the Tribunal has, in the passage I have quoted above, made findings addressing the matters referred to in these grounds. In my opinion, the Tribunal was clearly aware of and sufficiently addressed these aspects of the applicant’s claims. Plainly, they failed as a result of the Tribunal’s essential disbelief of the applicant’s claim to be a Christian and to have been involved in religious riots in 1998.
In relation to ground 2, I do not consider that the Tribunal’s reasoning was unreasonable, in any sense going to its exercise of its jurisdiction, as a result of its reliance on the country information referred to by it, and the adverse inference drawn by it from the absence of any reference to a major riot such as was claimed by the applicant.
In relation to ground 3, I am unable to identify any passage in the Tribunal’s reasoning which reveals the application of a “wrong standard”. In the absence of particulars I consider that this ground has no substance.
In relation to ground 4, in my opinion the Tribunal’s finding that the applicant was in truth a Hindu from Tamil Nadu was open to it on the material before it. It may also not have been material to the Tribunal’s essential conclusions.
There is no evidence before me of any failure of communication during the hearing before the Tribunal, nor of any inadequacy in the interpreting services provided at the hearing.
For the above reasons I have been unable to identify jurisdictional error affecting the decision of the Tribunal. It is therefore a privative clause decision for which relief is barred by s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding twenty‑five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 3 May 2006