SZEIN v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1301

FEDERAL COURT OF AUSTRALIA

SZEIN v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1301

SZEIN, SZEIO AND SZEIP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1102 of 2005

BRANSON J
6 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1102 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEIN, SZEIO AND SZEIP
APPELLANTS

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

6 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The adult appellants pay the Minister’s costs fixed in the sum of $3800.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1102 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEIN, SZEIO AND SZEIP
APPELLANTS

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	BRANSON J
DATE:	6 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants are a couple and their young child.  They are citizens of India.  Only the adult male appellant has claimed to be a person in respect of whom Australia owes protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (‘the Refugee Convention’).  His wife and child applied for protection visas as members of his family.  When I refer to the appellant hereafter I mean the adult male appellant. 

2. The appellant’s claim to have a well-founded fear of persecution in India was based on his claim to have abandoned the Sikh religion and become a devoted Christian.  In the declaration that formed part of his visa application he claimed to have become attracted to Christianity during his school days.  He said that at that time he had Christian friends and the opportunity to visit the Christian church.  He also said that he listened to ‘the Father in the Christian Church [who] always preached that all persons are equal and [the] same whether they are rich or poor [and] of whatever religion and … should help each other’.  He further claimed that when he grew up, he made more Christian friends and went to church and a Christian library regularly.  He said that he used to read Christian religious books and that the church management used to send him ‘all the literature and other Christian religion material’ to his home address.

3. The appellant’s declaration asserted that his highly religious Sikh parents became agitated about his interest in Christianity leading to a breakdown in family relations and physical violence towards him by his father.  He claimed that his Christian friends in India have told him that his parents and fanatic religious supporters are looking for him and if he returns to India he will be tortured or may be killed.  

4. Although the appellant’s declaration makes a passing reference to the BJP political party the appellant, when later questioned by the Refugee Review Tribunal (‘the Tribunal’), did not suggest that he has a well‑founded fear of persecution in India for any reason other than religion.

5. A delegate of the first respondent refused to grant the appellant a protection visa.  The appellant sought review of the delegate’s decision by the Tribunal.

6. The appellant and his wife were each questioned by the Tribunal member concerning their understanding of Christianity.  Neither of them appeared to understand the notion of different denominations within the Christian church.  They did not know of baptism as a ritual of the church.  The appellant was unable to describe a Christian church service.  He could not articulate any fundamental principle of Christianity other than that Christianity is to help people.  He did not know what was commemorated at Easter or whose birth was commemorated on 25 December.  The appellant had not at the time of the Tribunal hearing attended a church in Australia during his four months in this country.  However, he said that he went past the front of a church near his home and thought of God. 

7. The appellant’s wife told the Tribunal member that she had converted to Christianity because of her husband’s decision to do so.  She told the Tribunal member that she and her husband had read the bible and about St Mary.  She said that Christians are very helpful and very good.  She told the Tribunal member that Jesus Christ is the Son of God.  She said that Easter is a day of happiness and people give Easter eggs.  She confirmed that, although she and her husband lived near a church, they had not attended a church in Australia.

8. The Tribunal member concluded that the appellant had fabricated his claim to fear persecution in India for reason of his religion.  The Tribunal member additionally noted credibility problems with documents provided in support of the appellant’s claim.  Perhaps most significantly, the Tribunal member noted that the certificate said to be on the letterhead of St Xavier’s Church, New Delhi, misspelt ‘Jesus Christ’ as ‘Jasiis Chrisc’.

9. The appellant was represented by a solicitor before the Federal Magistrate.  Nonetheless, as the reasons for judgment of the learned Federal Magistrate reveal, the submissions advanced before the Magistrate on analysis constituted an attempt to obtain merits review of the factual findings of the Tribunal.  The Federal Magistrate dismissed the appellant’s claim for judicial review of the decision of the Tribunal. 

10. Before this Court the appellant and his wife have not been legally represented.  They have each addressed the Court.  They have advanced claims which can be categorised into three separate categories.

11. The first category of claims relates to their respective capacities to take part in the Tribunal hearing.  They claim that the hearing before the Tribunal miscarried because they were each distracted by the noise of their child and unable to concentrate on the questions of the Tribunal member.  They also claim that the hearing before the Tribunal was their first experience in a courtroom situation and that they were very nervous.  The reasons for decision of the Tribunal confirm that their child was noisy during the course of the Tribunal hearing.  The Tribunal’s reasons for decision show that the appellant was questioned by the Tribunal while his wife and child were outside the room.  Nonetheless, I accept what the appellant has said, namely that he was nonetheless able to hear his child.  It is not suggested that the Tribunal member was told that either the appellant or his wife was not in a position, because of stress or any other reason, to answer the relatively simple questions asked by the Tribunal member.  Even if this category of claims had been raised before the Federal Magistrate, which it was not, the claims would not have provided any basis for a conclusion that the decision of the Tribunal was affected by jurisdictional error.

12. The second category of claims relates to the conduct of the Tribunal member who conducted the hearing.  The appellant and his wife have argued that the Tribunal member had reached a firm conclusion to reject their claim ahead of the Tribunal hearing.  They have also argued that the Tribunal member did not properly consider their claims and did not investigate them.  Claims in this category were made before the Federal Magistrate and were properly rejected.  Nothing in the material before the Court provides any support for the contention that the Tribunal member approached the appellant’s claims with a closed mind.  It was not incumbent on the Tribunal to investigate why, as the appellant contends, he left a comfortable middle-class lifestyle and a successful business in India to come to live in Australia many miles from his family.  It was for the appellant to put forward the basis upon which he claimed to be entitled to a protection visa.  He did so solely relying on circumstances arising from his conversion to Christianity.

13. The Tribunal member did not believe what the appellant said about converting to Christianity.  She also found that no weight could be placed on his allegedly supporting documentation.  Having rejected the appellant's claim to have converted to Christianity, the Tribunal  was under no obligation to investigate his entitlement to a protection visa further.  The suggestion that Christianity is practised differently in India, which has been advanced for the first time today, is not sufficient to show any error, and certainly no jurisdictional error, in the Tribunal’s conclusion that the appellant is not a convert to Christianity. 

14. The third category of claims made today seeks to attack the validity of steps earlier taken in the history of the appellant’s attempt to demonstrate an entitlement to a protection visa.  The appellant has challenged the validity of the signature on his original visa application claiming that it is not his signature.  This claim was not made either to the Tribunal or to the Federal Magistrate.  The jurisdiction of the Tribunal to review the decision of the delegate to refuse to grant the appellant a protection visa was dependent upon the appellant having made a valid application for a protection visa.  In the circumstances it is not open to him now to seek to disown the only application for protection visa that he has made. 

15. The appellant also challenges, as I understand him, the competence of the solicitors who have acted for him in this matter and thus the validity of the steps taken by them on his behalf.  A solicitor assisted him in completing his original protection visa application and another solicitor appeared for him before the Federal Magistrate.  The solicitor in each case was apparently one selected by the appellant.  The appellant’s concerns about the competence of those solicitors is not a ground of appeal from the decision of the Federal Magistrate.  Inherent in this category of complaints may have been a suggestion that the statement of the appellant which formed part of his application for a protection visa contained material inaccuracies.  Before the Tribunal the appellant acknowledged that he was able to read English sufficiently well to read his statement.  He asserted that it was accurate.  No jurisdictional error attended the decision of the Tribunal to believe the appellant’s evidence in this respect. 

16. The reality, as it seems to me, is that the appellant and his wife are seeking merits review of the decision of the Refugee Review Tribunal.  Merits review of this kind is not available to them on an appeal to this Court from a decision of the Federal Magistrates Court. 

17. The appeal is dismissed.  There will be an order that the adult appellants pay the Minister’s costs fixed in the sum of $3800.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            14 September 2005

The Appellants appeared in person.
Counsel for the Respondent:	S McNaughton
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	6 September 2005
Date of Judgment:	6 September 2005