SZJFC v Minister for Immigration
[2009] FMCA 268
•23 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJFC v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 268 |
| MIGRATION – RRT decision – Indian claiming fear of persecution for reasons of caste, political activity, and conversion to Christianity – claims of political activities disbelieved – relocation found reasonable by Tribunal – no jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth), ss.425, 426A |
| Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 Minister for Immigration & Citizenship v SZIAI & Anor [2009] HCATrans 28 Parramatta City Council v Pestell (1972) 128 CLR 305 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 SZIAI v Minister for Immigration & Citizenship [2008] FCA 1372 SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 SZJBA v Minister for Immigration & Citizenship (2007) 164 FCR 14 SZMDS v Minister for Immigration & Citizenship [2009] FCA 210 Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272 |
| Applicant: | SZJFC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3042 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 23 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 23 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms B Griffin |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
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 |
SYG 3042 of 2008
| SZJFC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant came to Australia in 2005, and shortly after his arrival lodged an application for a protection visa. The application identified the applicant as a person who was an Indian and of Hindu religion, who spoke Tamil and came from the Indian state of Tamil Nadu. It referred to his period of residence outside Australia in South Korea since 2001. Handwritten insertions in the form claimed that the applicant feared to return to India by reason of fearing persecution from “Islam people”, and made unclear references to difficulties which occurred in 2002 after the Godhra train massacre.
A delegate refused the application on 16 September 2005, on the ground that it was vague and lacking in detail in relation to the applicant’s own history upon which he claimed fear of return to India.
The applicant appealed to the Tribunal, indicating he would submit more details later. However, he did not attend the first hearing to which he was invited, and later claimed that he did not receive notice of the hearing. A decision of the Tribunal based on s.426A of the Migration Act 1958 (Cth) was set aside by consent order in this Court.
After the remitter, the applicant attended a hearing on 19 November 2007, and on that occasion he presented an unsworn statement. In this, the applicant made completely different claims to fear persecution. He claimed that his parents “belong to Hindu schedule caste (Low caste) and we were discriminated by Hindu upper caste community”. He also claimed that he had become a Christian, and suggested that he might be targeted by Hindu fanatics and Indian authorities, particularly directed at those who were converted to Christianity.
The applicant also claimed to have a fear of persecution for his political activities. He claimed that his parents had been actively involved in providing support and assistance to Sri Lankan Tamils, and that they and he had worked to promote and assist the Liberation Tigers of Tamil Eelam (LTTE) and the Tamil Nadu Liberation Army (TNLA) in India. He claimed that his parents and he had been harassed by police, arrested, and jailed for these activities.
At the hearing, continued on 4 February 2008, he explained that this harassment had occurred between 1983 and 1988. He had then travelled overseas several times, returning in 1994. He resumed his political activities, but did not claim to have been arrested or harassed, although he claimed to be still wanted by police. He also referred to his conversion to Christianity in Australia at a Korean Baptist church to which he had been referred by members of a church in South Korea. He presented some documentation concerning his conversion, and purporting to corroborate his involvement in political activities in India.
The Tribunal handed down its second decision on 26 February 2008, and again affirmed the delegate’s decision. However, this also was set aside by consent order in this Court, because the Tribunal did not address the applicant’s claim to fear persecution on the ground of his caste, as well as religion and politics.
After the second remitter, the applicant presented some further statements from supporters, and attended a hearing of the reconstituted Tribunal on 22 August 2008. A detailed description of this hearing is contained in the Tribunal’s statement of reasons, and I have no reason not to accept that description.
The Tribunal questioned the applicant thoroughly about his claimed background and that of his parents. In the course of the hearing, it put to him difficulties it had with his evidence. At the end of the hearing, it put to him that it might not accept that he had had any LTTE problem at all, but that it might appear that he had been happily living and working in Tamil Nadu until 2001, when he went to South Korea for work.
The Tribunal also put to him that his caste, the Devangar caste, was not a scheduled caste, although it might be less favoured than the Brahmins.
The Tribunal explored with the applicant his claims to fear discrimination as a converted Christian, including the significance that his wife and son had also converted to Christianity at a recent time. It discussed with him whether, if discrimination was a problem in a village, he would live in a town, including a town where he had lived for some years before going to South Korea.
The third Tribunal handed down a decision on 30 October 2008, in which it again affirmed the delegate’s decision.
In its statement of reasons, after carefully reciting all the evidence before it, the Tribunal concluded that there were good reasons to reject the applicant’s evidence on credibility grounds. It referred to contradictions in the course of his giving evidence to the most recently reconstituted Tribunal, and to his changing his evidence and prevaricating at times.
It also identified inconsistencies in the claims made by the applicant with “the objective evidence”. For example, the applicant’s claim that his parents had been repatriated to Tamil Nadu from Sri Lanka under the Sirima‑Shastri pact was inconsistent with the fact that the applicant had been born in India before the date of that pact. The Tribunal also thought that his claim to have been persecuted for supporting the LTTE prior to 1991, when the LTTE was declared an unlawful association, was inconsistent with country information. Similarly, the TNLA had only become illegal in 2002, and the Tribunal had difficulty accepting that the applicant or his parents would have been arrested for involvement in that organisation in the period from 1985 to 1992.
The Tribunal referred to the applicant’s failure to apply for refugee status in South Korea with the assistance of his church, and thought that this cast doubt on his claimed fear of being persecuted in India.
For these reasons, the Tribunal did not accept that there were numerous cases pending against the applicant, nor that the police were looking for him. It did not accept that if he returned to Tamil Nadu now or in the reasonably foreseeable future, he would become involved in political activism, nor that there was a real chance that he would be persecuted by the police nor law enforcement bodies by reason of real or imputed political opinion if he returned.
When arriving at these conclusions, the Tribunal considered the corroborative documents tendered by the applicant, but it said that it gave “greater weight to the problems which I have with the applicant’s evidence” which it had outlined.
Addressing the applicant’s claims based on caste, the Tribunal noted his evidence to it that he did not belong to a scheduled caste. It said that, although the Devangars were classified as a backward caste in Tamil Nadu, the applicant himself had obtained a university degree, and his claims of discrimination in employment related to his claimed involvement in political activism only. It did not accept that there was a real chance that the applicant would suffer persecution involving serious harm because he belonged to the Devangar caste if he returned to India.
Addressing the applicant’s Christian conversion, it accepted that the applicant had been converted in a Korean church in Australia, and had continued to attend that church, although it did not consider that he had shown much understanding of Christianity. It also accepted that the applicant’s wife and son had converted to Christianity in India. It noted claims that Dalits had been penalised who converted to Christianity, but noted that the applicant did not belong to that caste. It considered his claim that discrimination against converted Christians was “very acute in the villages”, but it concluded that he could return safely to other places in Tamil Nadu, referring to three towns or cities, including one in which the applicant had previously lived. It considered that it was reasonable, in the sense of practicable, for the applicant “to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”. It therefore concluded that he would be able to practise his religion freely in Tamil Nadu, and that there was not a real chance that the applicant would be persecuted for reason of his real or perceived religious beliefs if he returned to that State now or in the reasonably foreseeable future.
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant has presented a number of documents to the Court containing grounds of jurisdictional error. Unfortunately, many of the contentions are too general to be meaningfully applied, or have been taken from precedents with no or little relevance to the present reasoning of the Tribunal.
The two contentions of jurisdictional error in the original application are unparticularised.
In an affidavit which was filed with the original application, the general contention is made that the “reasoning adopted by the Tribunal was not logical and misapplied so that the factual result was perverse and the decision was unreasonable”. There is reference to “Parramatta City Council v Pestell (1972)” and “Prasad v Minister for Ethnic Affairs (1985)”. This contention is again repeated in a written argument filed by the applicant. It is not further explained, except that an argument is presented which appears to challenge the reasonableness of the Tribunal expecting the applicant to relocate to a State in northern India or outside Tamil Nadu. However, as I have indicated, this was not the reasoning of the Tribunal, which was satisfied that the applicant could safely return to Tamil Nadu and, if necessary, relocate to a town or city in that State.
I have carefully considered the Tribunal’s reasoning, and do not consider it is capable of being characterised as lacking a logical foundation, or being perverse, capricious, or manifestly unreasonable within the sense required by authorities to give rise to evidence of jurisdictional error (see Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, and other authorities recently applied by Moore J in SZMDS v Minister for Immigration & Citizenship [2009] FCA 210).
The applicant’s references to Pestell’s case and Prasad’s case are obscure. This is not a case where it is reasonably arguable that there was any obvious inquiry required to be taken by the Tribunal which was not taken (compare Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 at [77], SZJBA v Minister for Immigration & Citizenship (2007) 164 FCR 14 at [59]‑[60], and SZIAI v Minister for Immigration & Citizenship [2008] FCA 1372 [Special leave granted 13‑02‑09], with SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 at [29], and Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272 at [110]).
The applicant’s affidavit and written argument also contend that the Tribunal failed to afford procedural fairness by denying the applicant an opportunity to explain his claims.
However, on the evidence before me, the applicant had ample opportunity to be heard while his matter was before the Tribunal and, in particular, in the course of the hearing conducted by the most recently reconstituted Tribunal. Particularly in the absence of a transcript, I can find no evidence supporting any procedures or conduct of the Tribunal which could provide support for this contention, whether it relates to s.425 of the Migration Act or any other section of that Act.
The applicant’s amended application makes a contention in Particular 1(a), which I cannot understand, seeking to undermine the Tribunal’s adverse finding on credibility. However, in my opinion there was evidence before the Tribunal which clearly allowed it to arrive at its adverse findings, and I can detect no jurisdictional error affecting them.
The amended application also makes a contention that the Tribunal failed to take into account “the situation of the PWG political activities”. This is obscure. Possibly “PWG” means “People’s War Group”, which is a banned terrorist organisation in India. However, the applicant had made no claims to belong to that group. I think this argument was taken from a precedent with no bearing on the present matter.
The only other contentions in the written material appear, as did the applicant’s oral submissions to me, to invite the Court itself to accept the truth of the applicant’s claims, contrary to the conclusion of the Tribunal. However, the Court does not have power itself to address the merits of the applicant’s refugee claims nor the truth of his evidence to the Tribunal.
For the above reasons, I am unable to identify jurisdictional error affecting the Tribunal’s decision. I must therefore dismiss the application.
I certify that the preceding thirty‑one (31) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 7 April 2009
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