SZGVB v Minister for Immigration - [2007] FMCA 176

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGVB & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 176

MIGRATION – RRT decision – Indians claiming persecution for Christian religion and evangelical activities – claims disbelieved by Tribunal – possible s.424A(1) failure – independent finding that state protection is available – no jurisdictional error vitiating Tribunal’s decision.

Acts Interpretation Act 1901 (Cth), s.8
Migration Act 1958 (Cth), ss.422B(1), 424A, 424A(1), 424A(3)(b), 425, 474, 483A
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 174
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SZBYR & Anor v MIMIA & Anor [2006] HCATrans 680
SZBYR & Anor v MIMIA & Anor [2006] HCATrans 716
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801
SZEVE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 390
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
SZFBO v Minister for Immigration & Multicultural Affairs [2006] FCA 291
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965

First Applicant:

SZGVB

Second Applicant:

SZGVC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1954 of 2005

Judgment of:

Smith FM

Hearing date:

1 February 2007

Delivered at:

Sydney

Delivered on:

1 February 2007

REPRESENTATION

Counsel for the Applicants:

Applicants in person

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1954 of 2005

SZGVB

First Applicant

SZGVC

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 25 July 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”). It seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 June 2005 and handed down on 12 July 2005. The Tribunal affirmed a decision of a delegate made on 25 October 2004, refusing to grant protection visas to the applicants.
The Court’s jurisdiction under s.483A has been repealed, but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the Migration Litigation Reform Act 2005 (Cth), and Acts Interpretation Act 1901 (Cth), s.8). The Court’s powers of judicial review are confined by s.474, so that I cannot set aside the Tribunal’s decision and send the matter back to the Tribunal, unless I am satisfied that the decision was affected by jurisdictional error. I do not have power to decide whether the applicants’ refugee claims should be believed, nor whether they qualify for protection visas.
The applicants arrived in Australia in August 2004. They are a husband and wife who were then accompanied by their son. He is presently studying in New Zealand and was not a party to the application before the Tribunal nor the present proceeding. On 13 September 2004, they made an application for protection visas, with the wife putting forward no separate refugee claims, although her history was presented. As did the Tribunal, I shall refer to the applicant husband as “the applicant”.
The protection visa application was accompanied by a declaration signed by the applicant explaining a history why he sought protection in Australia against return to the country of his nationality, India. The applicant claimed that he and his wife came from Christian families living in the state of Kerala. He claimed to have preached the gospel in villages surrounding his home, and presented certificates to certify that he and his wife were “accredited evangelists” of a church described as the Abundant Life Fellowship. The Tribunal could not find evidence confirming the existence of that church, but ultimately accepted that it may have existed in Kerala among other Christian churches.
The applicant claimed that after he began preaching, he “used to get persecuted” by members of extremist Hindu organisations, particularly of the RSS. He claimed that he and his wife had worked as evangelists in America between 1990 and 2000, and then returned to India where they converted “many Muslims and Hindus towards the Christianity”. The applicant’s written statement referred to a confrontation in January 2004:
In the first confrontation as described above we were warned to stop spreading the Christian beliefs. While guns were pointed towards us, no one was physically harmed we were all shaken by the episode. I in particular was told me and my family could be shot for what I was doing.
In January 2004 me and my family started preaching on the streets of the suburban area of Kerala. Suddenly members of the RSS a ‘fundamental communist party’ burst onto the scene and started beating us up. They structured the immediate closure of all our preaching activities. We were warned not to preach anywhere at all. In so far as they were concerned, they did not want any religious preaching to occur at all.
The written statement also claimed that “they burned our house and property”. It claimed that after moving to the city of Chennai, the applicants had converted “a Hindu boy from an aristocratic family towards Christianity” and that this had resulted in threats. It said:
On 1^st May on midnight at 11.30 pm peoples were knocked on my door and we looked at the windows and there are too many peoples were standing with knives, stones and some of them has petrol tins.
There are R.S.S threatened my family that they would kill us.
They then claimed that “we escaped from the church” and were helped to get to Australia.
A delegate refused the application on 25 October 2004. In his statement of reasons he found that “the applicant’s fear of Convention‑based persecution is not well‑founded”, largely for the reason:
The applicant’s claims are not supported by independent country information, which indicates that there is no prohibition on conversion in India, that the State protects and promotes interreligious harmony, and that it responds appropriately to any threat of religious‑based violence.
The applicants appealed to the Tribunal, and presented a body of general information concerning the situation of Christians in India. They also attended a hearing held by the Tribunal on 25 February 2005. The Tribunal gave a description of the hearing in its reasons. No transcript has been put into evidence by any party, and I have no reason not to accept the Tribunal’s description of the hearing.
The Tribunal described its questioning of the applicant concerning his religious background and his claims to have suffered harm. The applicant did not maintain the claim that there had been incidents of serious threat, other than one which he and his wife identified as occurring on 1 July 2004. He described this incident to the Tribunal:
Asked what he thought would happen to him if he returned to India the Applicant replied that his life and his family’s lives were threatened by the RSS. He explained that one day he went to Tamil Nadu state to give the message about Jesus Christ. S was ready to convert and did so in about May 2004. His parents found out and complained to the RSS and gradually the RSS made trouble; they watched them preaching and one day they came to his home and beat him by slapping his face and hitting him with a stick. He claimed there was lots of “torture” but when the Tribunal asked the Applicant what he meant he referred to the perpetrators using abusive language. He added that a part of the house was burnt and windows were broken. This incident occurred on 1 July 2004; his wife and son hid and were not hurt. The Applicant claimed that the RSS wanted him because he’s always preaching whereas his wife just hands out tracts and books. He fears that the RSS may again threaten them because 90% of the population is Hindu and they don’t like people to convert. He also claimed that an anti‑conversion law was passed there and in Tamil Nadu. In response to the Tribunal putting to him that Kerala has not passed such a law and the prospect of it doing so is very slim given the significant Christian community, and that the anti‑conversion law in Tamil Nadu was repealed, the Applicant replied that the RSS are everywhere. He added that he always refused the RSS’s extortion demands for money and that’s why they came to his house as he had just described; he explained that they had earlier asked for money and told the Applicants to move away. He knew the RSS was responsible for the 1 July incident because he recognised five of the perpetrators from the neighbourhood and gave police those names. There were also lots of witnesses. He went to the police and made a report but does not know if police spoke to the witnesses. The police took no action; asked if police said why they took no action the Applicant said that the RSS gave police money. Asked how he knew the police did nothing about his report the Applicant claimed that his cousin called to inquire but his inquiry was unsuccessful as police couldn’t find the file.
The Tribunal questioned the applicant about his evidence, and its differences from his written statement. It also explored differences which emerged in the evidence given by the applicant wife. It put to them that independent country information “did not suggest that there was a real chance that Christian pastors and evangelists are persecuted in Kerala”.
It is clear that the Tribunal drew to the applicants’ attention that the credibility of their claims was in issue. This was also drawn to the applicants’ attention in a letter served under s.424A on the applicants dated 17 May 2005. This particularised instances of inconsistency between the applicants’ written and oral evidence on key issues, including differences between the evidence of the applicant and his wife. The applicant responded to the particulars seriatim in a letter dated 30 May 2005, stating that “we stand by the contents in the written evidence”. His letter also concluded with a general statement: “I state that we stand by the written evidence submitted”.
In its statement of reasons, the Tribunal referred to country information which it consulted as to the situation of religious freedom in India and in Kerala in particular.
Under “Findings and Reasons”, the Tribunal provided what, in my opinion, were two separate reasons for a conclusion that it was not satisfied that the applicant was a person to whom Australia owed protection obligations, in particular because it was not satisfied that he had a well‑founded fear of persecution within the meaning of the Convention if he returned to India.
The first reason was a credibility finding that “the Tribunal is not satisfied that the Applicant is a credible witness”. Its explanation of this finding commenced with a general explanation:
Although the Applicant assured the Tribunal at the start of the hearing that the information and claims in the protection visa application were all true and a complete statement of his claims for a protection visa, the Applicant’s oral evidence differed in many key respects, and his evidence often changed when challenged or explored. This can be seen from the detail of the evidence as set out above, for example, even about such basic matters as whether the Applicants lived in their family home up until they came to Australia or not, and about whether the Applicant was a pastor or not. The Tribunal also finds some of the Applicant’s written evidence very vague and general, for example about when the RSS pointed guns at him, when the RSS demanded money, when and how long they remained in Chennai and when they returned to Kerala. Had these claims been true, as well as important and relevant to his claims for protection, the Tribunal would have expected some useful detail about them and that they would have been expanded upon at hearing. The Applicant wife’s oral evidence also differed in some respects from that of the Applicant.
Apart from these general reasons, the Tribunal also identified particular difficulties involving inconsistency in the applicant’s evidence and its assessment of aspects of his evidence. One of its conclusions was expressed:
Also, the Tribunal is of the view that had the Applicant personally baptised S (or S according to the Applicant wife), he would have clearly claimed this in his written evidence given that he claims at one stage that this was the main cause of the attack on himself and his home that led to him fleeing the country.
I raised with Counsel for the Minister an issue which was not raised by the applicants themselves in their application to the Court. This was whether the Tribunal’s references to the absence in the “written evidence” which had accompanied the visa application of “some useful detail about” the applicant’s claims about the RSS pointing guns and demanding money, and also the absence of the applicant “clearly claiming” that he had personally baptised a person, revealed the use of information taken from the written statement, being the fact that the original written statement did not contain the expected details. If so, this was information which might have been required to have been put to the applicants in a s.424A(1) letter under principles discussed, for example, in NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 174, and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at [224] and [177] (“SZEEU”) (but compare Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195, and SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801).
Counsel for the Minister first submitted that these paragraphs did not show the use of information as to “omissions” in the manner discussed in the authorities, since all that the Tribunal referred to was the absence generally of evidence in the visa statement and to the Tribunal which would satisfy it as to refugee claims. However, I am inclined to think that the Tribunal’s reasoning goes further than that, and that it draws an adverse inference from the absence of particular information in the written visa statement. However, as will appear, I do not need to decide this point.
Counsel’s second argument was that, if s.424A(1) was engaged, the applicant’s written visa statement had been republished to the Tribunal within s.424A(3)(b), by reason of the applicant’s general assurance as to the truth of the statement at the start of the hearing, and, more strongly, by reason of his statement that “we stand by the written evidence submitted” in his letter responding to the s.424A letter. He accepted that the s.424A letter did not itself put to the applicant that the Tribunal might draw adverse inferences from the absence of relevant information in the visa statement.
A commonsense approach to questions of republication has been suggested by recent decisions of the Full Court in Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155 at [16], and also NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 at [59]‑[63]. Applying this approach, I am inclined to the view that in the present circumstances the applicant’s statements to the Tribunal invited the Tribunal to consider the evidentiary weight and effects of his original written statement, including what it did not say. However, on this point also, I do not need to reach a firm view.
Counsel’s third argument, which in my opinion is his strongest, is that the Tribunal also decided to affirm the delegate’s decision based on independent reasoning, that is, independent of its dissatisfaction with the applicants’ credibility. On authority binding me, a failure by a Tribunal to put in a s.424A(1) notice information which explained part of an adverse credibility finding, where the credibility finding did not provide the sole reason for affirming the delegate’s decision, can be treated as immaterial “if it can be shown that there was a basis for the Tribunal’s decision which can be seen to be entirely independent of the failure to follow s 424A” (see SZEEU at [233], and compare North J in VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965, Emmett J in SZFBO v Minister for Immigration & Multicultural Affairs [2006] FCA 291 at [24]‑[28], and Edmonds J in SZEVE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 390 at [15]‑[16]).
I note that the correctness of this line of authority is a matter upon which the High Court has granted special leave to appeal in SZBYR & Anor v MIMIA & Anor [2006] HCATrans 680 and SZBYR & Anor v MIMIA & Anor [2006] HCATrans 716, but in my opinion I am at present bound by these authorities, and should follow them.
Applying this principle, I am satisfied that no material failure to follow s.424A occurred in relation to the Tribunal’s present decision. Its independent reasoning was expressed in the following paragraph:
In any case, if the Applicant’s claim about the serious attack on himself and his home on 1 July 2004 (or 1 May) is true, and/or if the Applicant has serious problems from the RSS on return to India for reason of his Christian religion or his practise of it, including evangelising, the Tribunal is satisfied that adequate state protection is available and was not and will not be denied to the Applicant. This is because the Tribunal accepts independent country information set out above which indicates that although isolated incidents of religious violence cannot be prevented, the secular Congress Party Government which came to power in mid 2004 is committed to the protection of Christians, a significant minority in India. The Tribunal also accepts independent country information about Kerala state; it is well known for its tolerance and very long Christian tradition and for the significant size and power of the Christian community; contrary to the Applicant’s assertions the population there is not 90% Hindu, nor has an anti‑conversion law been passed in Kerala, and as the Tribunal noted, neighbouring Tamil Nadu state has repealed its anti‑conversion law. Although there have been a few particular incidents there affecting a very small number of people in the 32 million population of the state, the information about those incidents does not suggest that the religious violence is either condoned or tolerated by the authorities or that the authorities fail to act appropriately; the Applicant’s comment about police still investigating a recent attack on his cousin’s Indian Pentecostal Church supports this. The Tribunal is not satisfied that the Applicant has a well‑founded fear of persecution within the meaning of the Convention if he returns to India.
I consider that the Tribunal’s finding, that there was actually available protection by the State to the applicants if they returned, was arrived at on the assumption that their claims presented to the Tribunal were entirely true. I can see no jurisdictional error vitiating that finding, which therefore sufficiently supported the Tribunal’s decision to affirm the delegate’s decision.

The applicants have only filed one document in this Court: their original application. They have not filed an amended application nor any written submissions. The grounds set out in their application are:
1.Page 3 of the decision of the Tribunal refers to four key elements that are required to satisfy the Convention definition. The applicant states that he has the four key elements and therefore entitled to get protection visa.
The first element – applicant must be outside his country.
The second element – the applicant must fear persecution. If the applicant returns to India his life would be in danger.
The third element – the persecution which the applicant fears must be for one or more reasons enumerate in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion.
The fourth element – the fear of persecution for a Convention must be a “well founded” fear. The applicant fulfils all the four elements.
2.The applicant states that is an error on the part of the Tribunal to rely on some third party source information which is not correct. The Tribunal should have considered the current facts and should have accepted the applicant’s claim.
3.The Tribunal having accepted the difficulties or proof faced by the applicants for refugee status should have given the benefit of doubt to the applicant and not to the other side.
4.The Tribunal failed to give sufficient time to the applicant by giving another hearing date. The applicant states that this is against general principle of natural justice.
5.The Tribunal failed to consider the written submission made by the applicant on 30 May 2005.
6.The Tribunal has rejected the claim of the applicant as gross exaggeration. This shows the bias nature of the authority and therefore the order is to be cancelled.
7.The Tribunal has completely ignored the threat made by the RSS group to the applicants, which shows the Tribunal has not considered all relevant points.
8.The applicants request permission to file additional ground at a later stage, if necessary.
Grounds 1, 2 and 3 in my opinion amount only to challenges to the merits of the ultimate conclusion of the Tribunal that the applicants’ fears of persecution were not well‑founded. I do not think they identify jurisdictional error.
In relation to Ground 4, the Tribunal did afford the applicants the opportunity required under s.425 of the Migration Act in relation to attendance at a hearing, and the opportunity to “give evidence and present arguments relating to the issues arising in relation to the decision under review”. The Tribunal was not bound to give them a further opportunity by way of a further hearing, and in my opinion no failure of procedure occurred by reason of the Tribunal declining the request made by the applicants in response to the s.424A letter “to call us for another interview so that the Tribunal could clarify everything again”. I do not consider the Tribunal’s procedures showed any failure “against general principle of natural justice”. Moreover, the Tribunal’s obligations in relation to inviting the applicants to a hearing were fully encompassed by its obligations under s.425 when read with s.422B(1). I therefore do not accept Ground 4.
Ground 5 is not supported on the material before me, since the Tribunal’s reasons show that it did consider the applicants’ written submission. The fact that it did not accept the contentions made in the submission does not provide jurisdictional error.
In relation to Ground 6, I do not consider that the reasoning followed by the Tribunal reveals any bias, whether actual or apprehended, under principles established by Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
Ground 7 in my opinion is not made out. I am not persuaded that there was any claim by the applicants which was not addressed by the Tribunal’s findings. I note that the Tribunal’s findings extended to addressing aspects of the written statement which had been disclaimed by the applicants at the hearing, but which they might have appeared to have revived in their response to the s.424A letter.
The applicants appeared today in person and I have considered what they have said to me. Essentially, they were requesting the Court to consider further evidence, as well as the evidence presented by them to the Tribunal, and to accept that they qualified as refugees. However as I have explained to them, it is not the function of the Court to embark upon that inquiry.
For the above reasons, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error. It is therefore a privative clause decision, and I must dismiss the application.

I certify that the preceding thirty‑two (32) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 23 February 2007