SZJYZ v Minister for Immigration and Citizenship

[2007] FCA 1198

FEDERAL COURT OF AUSTRALIA

SZJYZ v Minister for Immigration and Citizenship [2007] FCA 1198

SZJYZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 911 OF 2007

MANSFIELD J
9 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 911 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SZJYZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	9 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal is added as the second respondent.

2.The appeal is dismissed.

3.The appellant pay to the first respondent costs of the appeal.

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 911 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SZJYZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE:	9 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is an Indian citizen, having settled in India from Burma at a young age.  He arrived in Australia on 2 May 2006, and promptly applied for a protection visa under the Migration Act 1958 (Cth) (the Act). That application was rejected by a delegate of the first respondent on 26 July 2006. The delegate’s decision was affirmed by the Refugee Review Tribunal (the Tribunal) on 24 November 2006, and published on 14 December 2006. He then applied to the Federal Magistrates Court under the Act to have the Tribunal decision quashed for jurisdictional error. On 4 May 2005 a Federal Magistrate refused to set aside the Tribunal decision.

2. This is an appeal from the decision of the Federal Magistrate.

3. The appellant made two separate claims as to why he had a well-founded fear of persecution if he were to return to India.

4. The first was that made with his application for a protection visa.  It was a claim which the Tribunal accepted.  The claim was expressed by the Tribunal in the following terms:

   … that in Chennai, where he lives, there is a dangerous criminal gang who kill people as a profession.  Mr Swarmi Ji was appointed head of Kanchi Mutt, which is a charitable trust which helps the handicapped, education, rural development and promotion of self-employment.  Mr Swarmi Ji misused the funds of the trust.  Mr Shankara Raman who is the head of a temple located about 80 km from Chennai, became aware that Swarmi Ji hade [sic] misused the funds.  Mr Shankara Raman brought Swarmi Ji’s misdeeds to light.  Swarmi Ji then conspired with the killer gang to kill Shankara Raman.  Shankara Raman was killed on 3 September 2004.  The gang hide [sic] in the applicant’s village.  Swarmi Ji left the state and later went to Karnataka.  Although he did not belong to any political or religious group he informed the police of then whereabouts of the gang.  The gang was arrested.  The gang revealed to the police how the murder had happened and who was behind the murder.  The police arrested Swarmi Ji at Karnataka.  Swarmi Ji and the gang were allowed out on bail in January 2005.  The gang then sought out the informants to the police.  The gang found out that he was an informer.  The gang followed him.  He went into hiding.  Another informant was abducted by the gang.  His parents told him that unidentified people have asked for him.  The gang has vowed to kill him and the other informants.  The gang has connections all over India.  The newly elected party favours Swarmi Ji.  He obtained a visa to come to Australia.

5. The appellant’s second set of claims was made, as he acknowledged, only to the Tribunal.  It was not made when he made his application for a protection visa.  It was made in a statutory declaration to the Tribunal of 4 September 2006.

6. In that statutory declaration, the appellant provided information on which he claimed to have a well-founded fear of persecution from a number of political and police authorities.  He reported having participated in a demonstration against landlords in May 1991 leading to him joining the Communist Party of India and becoming a member of the “RYL”.  He said that he then led several rallies and meetings.  He was arrested several times by the police, and kept in custody on one occasion for a week and then released.  His statutory declaration suggests that he ceased those activities by the beginning of 1995, and he does not complain of having a well-founded fear of persecution in that statutory declaration by reason of those earlier activities.

7. The statutory declaration then asserts that, following his marriage, in 1995 the appellant helped form and became a member of the Christian People’s Party of India.  In that capacity he organised a farmer boycott of the election in 1996 and was subsequently arrested under what he called the “Rowdies” Act, and imprisoned for three months until May 1996.  He claims then that he became active in the activities of that political party, including procuring the conversion to Christianity of about 250 gypsies.  That, he says, upset the authorities and on 22 February 1997, he was attacked by some “Rowdies” and stabbed.  He was hospitalised for 10 days.  He made a complaint about that assault but the police took no action.  In fact, he claims, the ruling DMK government supported the Rowdies’ action.  He also infers that, in the succeeding year or so, the ruling DMK government caused him to be arrested several times without reason and to lay false charges against him.  In May 1998, when addressing a rally in Chennai, he claims to have been arrested again by the police under “PODA” and jailed for almost two years.  He claims to have been further educated in prison by another activist about the means of exposing the corruption of the then government.  His subsequent activities, he claims, led to him being again arrested in June 2000 and imprisoned for 10 months on false charges, being released just before the state election in May 2001.  He continued to work, he claimed, actively against the ruling DMK party and the party which he supported (the “AIADMK”) won that election.  He says that he was attacked by DMK Rowdies after the election win and was severely injured at “my left leg elbow” (his left ankle).

8. The appellant made a further claim that the Chief Minister of Tamil Nadu state ordered his surreptitious killing by the police because she suspected him of having leaked to the media some evidence of her corruption.  He came to know of the threat upon his life, in July 2004, and so went into hiding until he was able to come to Australia on 2 May 2006.

9. As he said in that statement, by way of conclusion:

   I earned the vengeance from the ruling DMK and AIADMK Government and R.S.S. and Hindus.  Tamilnadu Police and Central police are searching my whereabouts.  I am sure that I will be killed by any of them.

10. The appellant’s explanation for not having provided that information when he first made his application for a protection visa was that he was advised by Tamils in Australia that if he did so he would be seen as a problematic person and would be sent back to India.  He said he was given that advice, amongst others, by the person who had assisted him in filling out his application for a protection visa.

11. As to the first of the appellant’s claims, the Tribunal did not consider that the appellant’s fear, which it accepted as well-founded, was for a Convention reason.  It regarded the appellant’s fear as based simply upon the fact that the appellant had been identified as a person who had provided information to the police.  That did not bring him within any of the Convention reasons for persecution, namely persecution for reasons of race, religion, nationality, political opinion, or membership of a particular social group.  The Tribunal also rejected that claim, notwithstanding its findings of fact, because the appellant’s fear was not of government sponsored violence, but of non-state violence in India where, it found, the appellant was able to avail himself of protection from the local authorities.  It noted that there is a nationwide police service, and state organised police forces, all trained and on the evidence prepared to act appropriately and effectively to protect the appellant.  Accordingly, it was not satisfied that the appellant had not been able to avail himself of effective protection for any of the Convention reasons.

12. The Tribunal concluded as to the appellant’s second tranche of claims made in his statutory declaration of 4 September 2006:

    When the Tribunal considers the matters discussed above the Tribunal reaches the conclusion that the claims made by the applicant in his statement made to the Tribunal on 4 September 2006 do not establish that the applicant is a refugee.  They do not establish that he is a refugee because the Tribunal does not accept the claims as true claims.  The Tribunal does not accept the claims are true claims as the Tribunal does not accept as credible the applicant’s explanation as to why he did not include these later claims in the statement he made on 26 May 2006.  Neither does the Tribunal accept as credible his explanation that he provided all his reasons to the person who helped him fill in the application form and prepare the statement that he provided on 26 May 2006.  Neither does the Tribunal accept as credible that the applicant’s life could be at risk from so many sources as mentioned in the statement of 4 September 2006 and yet he did not mention any of them in the statement of 26 May 2006 made when he applied for the protection visa.  Neither does the Tribunal accept as credible that the applicant could have suffered arrest so many times as mentioned in the statement of 4 September 2006 and yet he did not mention any of them in the statement of 26 May 2006 made when he applied for the protection visa.  Neither does the Tribunal accept as credible that the applicant could have suffered so many injuries as a result of persecution as mentioned in the statement of 4 September 2006 and yet not mentioned any of the injuries in the statement he made on 26 May 2006 when he applied for the protection visa.  Neither does the Tribunal accept the applicant’s further explanation as to why he did not provide a more fulsome statement of his claims contained in his response of 22 November 2006.  These findings lead the Tribunal to conclude that claims set out by the applicant in his statement of 4 September 2006 are not true.  As the Tribunal has found that the claims set out by the applicant in the statement of 4 September 2006 are not true the applicant has not established in his statement of 4 September 2006 that he is a refugee.

13. The Tribunal recognised, in reaching those conclusions, that it was rejecting the appellant’s evidence that he had been advised by others not to disclose that information when he first made his application for a protection visa, and that he had done so in the context of a relative lack of knowledge and with naivety and lack of education.  It also acknowledged that there was some evidence from those supporting the appellant’s claims, from his family and church members, to support his claims as well as medical evidence to support the fact that on 22 February 1997 he had been hospitalised, apparently following the assault which he reported.

14. In fact, the Tribunal accepted that he had the various injuries or disabilities of which he claimed, including having been stabbed in the stomach.  But the Tribunal did not accept that, if those injuries had been suffered as he claimed, the appellant would not have mentioned any of them in the statement he made when applying for a protection visa.

15. The notice of appeal is imprecise.  That is not surprising, as the appellant is not represented.  However, it provides some indication of the issues which the appellant seeks to raise on the appeal.  The appellant first asserts that the Federal Magistrate, and the Tribunal, erred in law by rejecting his application for a protection visa because he had “clearly established” that he was a refugee as defined in the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act), and so the decision-maker should have been satisfied that he is a person to whom Australia owes protection obligations:  the criterion specified in s 36(2) of the Act for eligibility for the grant of a protection visa.  Secondly, the notice of appeal asserts error of law on the part of the Federal Magistrate for concluding that new material not produced when the appellant first applied for a protection visa could not be adduced in evidence before the Tribunal.  Thirdly, he complains, perhaps inconsistently with his second assertion, that the Tribunal did not give due consideration to the additional evidence which he adduced at the hearing before the Tribunal.  He then asserts in the notice of appeal that those three matters led to procedural and substantive error on the part of the Tribunal and of the Federal Magistrate.

16. The written submission of the appellant provides a somewhat different focus to his complaints.  He complains that the Tribunal committed jurisdictional error by failing to properly explain to him the relevance of information which it identified in a letter sent by the Tribunal to him dated 31 October 2006.  That letter was sent by the Tribunal pursuant to s 424A of the Act, to give the appellant particulars of information which the Tribunal considered would be the reason, or part of the reason, for affirming the decision on the review.  It invited the appellant to comment on that information.  Section 424A also requires the Tribunal to ensure, so far as is reasonably practicable, that the person receiving the notice understands why it is relevant to the review:  see s 424A(1)(b).  The complaint appears to be that the Tribunal’s letter did not satisfy that requirement.  The written submission says:

    The letter addressed only the relevance of my credibility in relation to my fear of being persecuted.  The letter was silent about the claim to be Catholic faith.  By relying upon my delay in making my statement to the Tribunal 4 September 2006 as a basis for concluding that all my claims in the statement are not true.

17. The written submission also complains that the Tribunal has not addressed the appellant’s claim to have been persecuted, and to have a well-founded fear of persecution if he were to return to India, by reason of his Catholic faith.  As best I can determine, it appears that he asserts that the basis of his claim for a protection visa as made in that application, namely the conduct of a gang threatening him because of his having provided information to the police about the gang, was motivated by reason of his Catholic faith, and therefore persecution for a Convention reason.  It is unclear, however, from that document whether the appellant’s complaint that the Tribunal did not address his claim to have a well-founded fear of persecution because of his Catholic faith was more extensive than confined to that particular conduct.

18. As noted above, the appellant’s principal, and indeed only, complaint about the Tribunal’s approach in relation to the first ground upon which he sought a protection visa was his complaint that the Tribunal had not considered whether the persecution which he then feared was due to him having been persecuted or fearing persecution by reason of his Christian religion.

19. In my judgment, that contention must fail.  It must fail for two reasons.

20. The first is that, although the appellant was, and was accepted to have been, a Christian at the time of that conduct, the fact of his religion on his own evidence was not significant to his decision to inform upon the gang or upon the gang’s decision to threaten him and other informants.  There is nothing to suggest that that was the case.  Indeed, as the Tribunal recorded, the appellant in his application for a protection visa said that he informed upon the whereabouts of the gang even though he did not belong to any political or religious group.  The appellant himself obviously then regarded his Catholic religion as not a motivating factor for those he feared.

21. The second reason why that contention must fail is that in any event, the gang’s threatened violence is non-state based.  It was not suggested that the Indian authorities are complicit in the threat which the gang has made or in the fear it has generated.  Consequently, it was necessary for the appellant to show that the Indian state does not take reasonable measures to protect the lives and safety of its citizens, including the provision of an appropriate criminal law, and of a reasonably affected and impartial police force and judicial assistant.  The Tribunal found to the contrary.  The appellant has not contended that it was wrong to have made that finding.  That finding in itself is sufficient to discount or to sustain the Tribunal’s conclusion:  see the discussion of Gleeson CJ, Hayne and Heydon JJ in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at 11 – 12 especially [26].

22. The appellant has a substantial obstacle to overcome to show that the Tribunal’s rejection of the second tranche of claims, first made to the Tribunal on 4 September 2006, involved jurisdictional error on its part.

23. In my judgment, the Tribunal’s assessment of the appellant’s reliability as a witness on those matters is not indicative of jurisdictional error.  Its assessment of his credibility on those matters is based upon logical matters capable of being taken into account by the Tribunal:  cf Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558 – 559. Nothing is shown to indicate that the Tribunal’s assessment of the credibility of the appellant on those matters went beyond an analysis of their inherent probability and extended into an area involving jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.

24. The additional matters raised in the notice of appeal also do not, in my view, demonstrate jurisdictional error on the part of the Tribunal.  The assertion that his status as a refugee was clearly established is only an attempt to have the Court substitute its view of the facts for that of the Tribunal; that is not the Court’s function on this appeal.  The appellant did not identify any new material which he sought to adduce to the Tribunal, and which he was not allowed to adduce.  In reality, the complaint was only that the Tribunal did not make findings of fact based upon the acceptance of that material as reliable.  It was not obliged to do so, and its reasons for not having done so do not demonstrate jurisdictional error on its part.  Nor does the appellant make out any failure to comply with s 424A of the Act.  The letter from the Tribunal of 31 October 2006 appears to me to adequately meet the requirements of s 424A(1)(b).  Indeed, the appellant was not able to explain why he contended that it did not do so, when asked to explain the complaint by reference to the section and the text of the letter.  Finally, to the extent that the Tribunal is said to have failed to address the appellant’s complaint (if made) that the second tranche of his claims was not addressed by reference to the Convention ground of his Catholic religion, I consider firstly that such an association with his religion was not made and, secondly, the rejection of the truthfulness of those claims was not related to its foundation in a Convention ground – whether his religion or his political beliefs – but in its inherent unreliability.  Once the claims were rejected as a matter of fact, the alleged cause of the conduct (alleged, but found not to have occurred) is of no moment.

1. Accordingly, in my judgment, the appellant has failed to establish error on the part of the Federal Magistrate or jurisdictional error on the part of the Tribunal.  The appeal must be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:        9 August 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	Mr D Godwin
Solicitor for the Respondents:	DLA Phillips Fox
Date of Hearing:	7 August 2007
Date of Judgment:	9 August 2007