SZGVB v Minister for Immigration and Citizenship

[2007] FCA 720

FEDERAL COURT OF AUSTRALIA

SZGVB v Minister for Immigration and Citizenship [2007] FCA 720

SZGVB AND SZGVC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 237 OF 2007

RYAN J
14 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 237 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGVB
First Appellant

SZGVC
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RYAN J

DATE OF ORDER:

14 MAY 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs, to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 237 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGVB
First Appellant

SZGVC
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RYAN  J
DATE:	14 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a Federal Magistrate on 19 February 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 June 2005, which was handed down on 12 July 2005.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”), who had refused to grant a protection visa to the appellants.  The appellants are nationals of India and are husband and wife.  Only the appellant husband (“the appellant”) made substantive claims so that his wife’s application was dependent on his as a member of his family unit.

2. Before the Tribunal, the appellant claimed to have a well-founded fear of persecution as he had been a Christian missionary in India.  The appellant claimed to have been a Christian since his youth but when he began preaching he was persecuted by various organised groups including the VHP, the RSS and the Naxalites.  The appellant asserted that he had lived in the United States from 1990 to 2000 where he had continued preaching and further claimed that, on his return to India, he had married and he and his wife had continued the missionary work, in the course of which they converted many Hindus and Muslims and were warned to cease their missionary work.

3. The appellant claimed to have been attacked by the RSS when preaching in suburban Kerala and, although he had complained to the police, they took no action but requested payment of a bribe.  When that was not forthcoming, the appellant asserts, his house was burned after which he moved to Chennai with his family and converted an aristocratic boy to Christianity.  The appellant claimed that the family of the boy then enlisted the assistance of the RSS who threatened the appellant, whereupon he returned to Kerala and ceased preaching but continued to work in the church.  As a result, the RSS persisted in its threats against him.

4. On 17 May 2005 the Tribunal wrote to the appellants pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”) to which the appellants replied in a letter dated 30 May 2005 in which they requested a further hearing. The letter written to the appellants pursuant to s 424A outlined inconsistencies between written statements and oral evidence presented at a hearing of the Tribunal. After considering the claims of the appellants as presented orally at the hearing and in writing as well as their response to the s 424A letter and independent country information, the Tribunal concluded that it was not satisfied that the appellant was a credible witness. In particular, it noted discrepancies between his oral and written statements and between his evidence and that of the appellant wife.

5. Although accepting that the appellants were Christians and members of the Abundant Life Fellowship and that they had lived and worked in the United States, the Tribunal did not believe that the appellant had been a pastor or a paid employee of the Church, particularly as he had resiled from these claims when they were explored by the Tribunal at the hearing. In relation to the alleged infliction of harm, the Tribunal found that the appellants’ oral evidence differed substantially from claims made in their application for a protection visa. Although, in response to the s 424A letter, the appellants had indicated their reliance on the written statement, the Tribunal preferred the oral evidence of the appellant because it was more consistent with the oral evidence of his wife.

6. On the basis of the oral evidence, the Tribunal found that the incidents of mistreatment upon which the appellants relied were not sufficient to amount to persecution within the meaning of the Refugees Convention.  Similarly, in the light of highly contradictory evidence, the Tribunal expressed itself as unable to be satisfied that the appellant had been assaulted or verbally abused or that the RSS had burned down his home.  The Tribunal went on the reject, as a gross exaggeration, the oral claim of the appellant to have suffered torture.  It found that the evidence about mistreatment was inconsistent with that going to the request for protection.  Accordingly, it considered that it could not be satisfied, because of the inconsistent and unreliable evidence, that the appellants had been seriously threatened or harassed by the RSS by reason of their religion or religious activities or that the family home had been attacked on 1 July 2002 or 1 May 2002 as asserted in the written statement or, if that had occurred, that the appellants had reported the matter and attempted to seek protection.

7. The Tribunal then turned to consider the adequacy of State protection in India and indicated that it was satisfied that it is available in that country and it was not, and would not be, denied to the appellants.  Before the learned Federal Magistrate the appellant first asserted that he had satisfied the relevant requirements of the Convention.  He argued that the Tribunal had erred in relying on incorrect independent country information and that the appellant should have been given the benefit of any doubt.

8. The appellants then contended that they had been denied natural justice when not accorded another hearing after they had requested it in the written response to the s 424A letter. It was next submitted that the Tribunal had demonstrated bias and had been guilty of ignoring evidence of the threats by the RSS, thereby failing to take into account a relevant consideration. Independently of the claims of the appellant, his Honour raised the issue of whether the Tribunal, in referring to the absence of some useful details in the original written statement, had revealed a use of information from the original written statement which it should have put to the appellants in the s 424A letter.

9. The learned Federal Magistrate accepted a line of authority to the effect that a failure by the Tribunal to refer, in a letter pursuant to s 424A, to information which would have militated in part against an adverse finding on credibility can be regarded as immaterial if there is a basis for the Tribunal’s decision which is entirely independent of the contravention of s 424A. However, his Honour noted that although he was bound to follow this line of authority, it was under challenge as a result of the High Court’s having granted special leave to appeal in SBYR v Minister for Immigration and Multicultural Affairs [2006] HCA 680 and [2006] HCA 716. I have, in the course of the hearing today, been informed by Mr Reilly of Counsel for the Minister that SBYR has now been argued in the High Court and the judgment of that Court remains reserved. 

10. The learned Federal Magistrate proceeded to consider the grounds in the application before the Court and considered that the appellants were impermissibly seeking merits review. Moreover, he held that the Tribunal had complied with its statutory obligation under s 425 of the Act. The claim that the Tribunal had failed to consider the submission made in response to the s 424A letter was rejected as not supported by the evidence adduced in the Federal Magistrates Court. Similarly, the claim of bias found no support in the published reasons of the Tribunal which revealed that all claims advanced by the appellants had been considered.

11. The appeal was instituted in this Court on 19 February 2007 by an application for leave to appeal, annexing a draft notice of appeal relying on the unparticularised ground that the Federal Magistrate had dismissed the case without considering the legal and factual errors made by the Tribunal.  On 20 March 2007, by consent, Cowdroy J made orders granting the appellants leave to appeal and deeming the draft notice of appeal to be the appellants’ notice of appeal.

12. On 21 March 2007 Deputy Registrar Farrell revoked directions made on 8 March 2007 and directed, amongst other things, that the appellants file and serve written submissions no later than five clear working days before the hearing date.  That direction has not been complied with and no real explanation of that omission has been advanced by the appellants.  They contented themselves with saying today that there was nothing further that they felt they could put in any written submission.  The Court has, accordingly, been hampered in its consideration of the appeal and the Minister has been denied the opportunity contemplated by the Registrar’s directions of responding in writing to the issues which the appellants presumably seek to raise.

13. Nevertheless, Mr Reilly for the Minister has furnished a succinct written analysis of the Tribunal’s treatment of the appellant’s claims and the learned Federal Magistrate’s rejection of the seven grounds of appeal relied on before him.  The appellants made no meaningful response to an invitation, on the hearing of the appeal today, to identify an error of law in the reasoning of the Federal Magistrates Court.  Nor were they able to identify in the reasons of the Tribunal any similar error which had gone undetected by the learned Federal Magistrate.  Instead, they sought to rely on a letter dated 7 May 2007 which, they claimed, contained evidence which had arrived too late to be put before the Tribunal.  They also sought to rely on difficulties which they would face in Kerala if required to return to India. 

14. I have examined for myself the reasons of the Tribunal and of the Federal Magistrates Court. I have been unable to discern in them any error of law which is capable of characterisation as a jurisdictional error. That includes any conceivable error in the application of s 424A of the Act. The Tribunal’s inability to be satisfied that the appellant husband had a well-founded fear of persecution turns essentially on its assessment of his credibility. That, as McHugh J pointed out in Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham, (2000) 168 ALR 407; (2000) 74 ALJR 405, is a task par excellence for the Tribunal, not one to be exercised again by a court on judicial review.  For these reasons the appeal must be dismissed with costs.  The order of the Court accordingly is that:

    (1)The appeal be dismissed.

    (2)The appellants pay the first respondent’s costs, to be taxed in default of agreement.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:        16 May 2007

The appellants appeared in person
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	14 May 2007
Date of Judgment:	14 May 2007