SZKQF v Minister for Immigration - [2007] FMCA 1128

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKQF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1128

MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Migration Act 1958 (Cth), s.424A
Federal Magistrates Court Rules 2001 (Cth)

Randawa v Minister for Immigration (1994) 52 FCR 437

Applicant:

SZKQF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1543 of 2007

Judgment of:

Driver FM

Hearing date:

16 July 2007

Delivered at:

Sydney

Delivered on:

16 July 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms B Griffin
Australian Government Solicitor

INTERLOCUTORY ORDERS

The title of the Minister on the amended application be amended to Minister for Immigration and Citizenship.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1543 of 2007

SZKQF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 30 March 2007 and was handed down on 24 April 2007. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant is from India and has made claims of religious persecution. He arrived in Australia on 2 August 2006 and applied to the Minister's department for a protection visa on 12 September 2006. The delegate of the Minister refused that application on 7 December 2006. On 27 December 2006 the applicant applied for review to the Tribunal.
The applicant's claims were based on his Christian, specifically Catholic, religion. He was from Goa in India where there is a substantial Christian population. The applicant set out some details of his claims with his protection visa application. The Tribunal was unwilling to make a favourable decision on the papers alone and invited him to a hearing. He attended a hearing on 13 February 2007, gave evidence and presented arguments.
I have before me as evidence the court book filed on 15 June 2007. That sets out in some detail at pages 82 to 85 what occurred at the Tribunal hearing. That is the only evidence I have before me about the conduct of the hearing. No transcript is available. The description by the presiding member suggests a fairly detailed discussion about the applicant's claims, his personal history. The discussion apparently concluded with the applicant raising the issue of the possibility of relocation to other parts of India. This may have been on the basis that the issue of relocation had been dealt with by the delegate. The Tribunal then referred to country information about Goa and about religious freedom within India, in particular in Goa.
The Tribunal in its findings and reasons accepted the applicant's claims to be a Catholic. The Tribunal also accepted the applicant's evidence that he and his father were actively involved in the Catholic Church in Goa. The Tribunal considered the applicant's claims that he and his father experienced problems in the local community from about 1994-1995 on account of his father's role. However, the Tribunal noted that the applicant had travelled out of India on numerous occasions and noted that he had not claimed protection in any of the countries that he visited prior to coming to Australia.
The Tribunal also noted that the applicant's claims of suffering abuse and harassment were linked not to his own beliefs and activities but to those of his father. The Tribunal found it highly implausible that if the applicant had suffered abuse from local community members and from police over a period of years from the mid-1990s on account of his religion and his religious activities that he would not have sought protection when he left India in July 2001 to travel to the Netherlands to join a ship. The Tribunal found that it was highly implausible that the applicant would not have sought protection on any occasion during the various trips he made out of India in the period since July 2001 and when he returned to India in January 2006 if he had suffered the harm he claimed. The Tribunal also found it highly implausible, if the applicant had continued to experience harassment and abuse from local community members and from the police during the periods when he returned to India, that he would not have taken the opportunity to seek protection the next time he travelled outside India.
Bearing those concerns in mind, the Tribunal did not accept that the applicant had suffered serious harm amounting to persecution from non-Christian members of the community and the police on account of his being Catholic or on account of being an active lay member of the Catholic Church in Goa from the period from the mid-1990s until his first departure in India in July 2001. The Tribunal also did not accept that the applicant had a subjective fear of being persecuted on account of his religion or religious activities because he had not sought protection in any of the countries he visited while working on board a ship.
The Tribunal also took into account independent information indicating there are very few reports of attacks on Catholics in Goa, particularly during the period dealt with in the applicant's claims. The Tribunal did not accept the claim by the applicant that his father had died because of physical abuse inflicted by the police or that such abuse was a contributory factor in his father's death. The Tribunal did not accept that the applicant suffered serious harm during the period in issue on account of his association with his father's activities in the church. It did not accept the applicant came to the attention of political figures or other authorities in Goa on account his religion, his religious activities or on account of his association with his father's religious activities.
In the light of those findings, the Tribunal rejected other ancillary claims by the applicant. The Tribunal referred to a number of other apparently minor incidents, but the Tribunal did not accept those incidents, if they did occur, constituted serious harm to the applicant or systematic and discriminatory conduct amounting to persecution. The Tribunal was not satisfied with the applicant's evidence concerning further problems he claims he experienced after his last return to India in January 2006.
The Tribunal noted that the applicant had given some inconsistent evidence between his statement to the department and his oral evidence to the Tribunal in relation to some issues. The Tribunal considered those inconsistencies to be of no consequence and made no adverse findings in relation to the inconsistencies.
The Tribunal concluded that it did not accept on the basis of his evidence at the hearing that he had suffered serious harm in India amounting to persecution on account of his religion or for any other Convention reason. The Tribunal did not accept that the applicant had come to the attention of the authorities in India on account of his religion or any other Convention reason. The Tribunal accepted that the applicant would continue to be a practising Catholic if he returned to India, and also accepted that he would continue to be involved in church community work. However, given its earlier findings, the Tribunal did not accept that there was any real chance that the applicant would suffer serious harm if he returned to India now or in the foreseeable future on account of his religion or for any other Convention reason.
These proceedings began with a show cause application filed on 16 May 2007. In that application the applicant asserted actual notification of the Tribunal decision on 24 April 2007. On that basis, I find that the application was filed within time.
The applicant now relies on an amended application filed on 11 July 2007. He also relies on his affidavit accompanying his original application, which I received as a submission. I gave procedural directions in this matter on 7 June 2007. I gave the applicant the opportunity to file additional affidavit evidence but he has not taken up that opportunity. In his affidavit, accepted as a submission, the applicant asserts an error of law, being incorrect application of the law to the facts as found by the presiding member. There are no particulars of that allegation and in the absence of particulars the assertion is meaningless.
On the face of the Tribunal decision there is no apparent incorrect application of the law to the facts. The legal principles relevant to the Tribunal decision are set out in the court book on pages 79 to 81. The presiding member accurately recited the relevant law. It appears to me he also correctly applied the relevant law.
Secondly, in the affidavit the applicant asserts a denial of procedural fairness in that he was not believed. The applicant asserts that the whole decision of the Tribunal was based on one-sided information in denying the applicant's claims. This may have some relation to the first ground in the amended application which is an assertion that the Tribunal decision does not reflect that it was made in good faith and according to the rules of natural justice.
An assertion of bad faith is a serious matter and should not be lightly made. It should be particularised and supported by evidence. In this matter there is not one shred of evidence to support the assertion that the Tribunal acted otherwise than in good faith. The mere fact that the applicant was in part not believed establishes nothing. In my view, the presiding member went to considerable pains to consider the applicant's claims carefully and fairly and the Tribunal accepted significant aspects of the applicant's claims relating to his religion and religious activities. There is no substance whatsoever in the assertion of a want of good faith.
As to procedural fairness, the Tribunal met its obligations under the Migration Act 1958 (Cth) (“the Migration Act”) to invite the applicant to a hearing and the hearing opportunity afforded to him appears to have been a fair one. There is no issue concerning s.424A of the Migration Act in this case as the Tribunal decision turns upon the information given by the applicant to the Tribunal for the purposes of the review. I see no relevant issue of procedural fairness under the general law in this case.
The amended application also asserts a misapplication of the internal flight principle as expounded upon in Randawa v Minister for Immigration (1994) 52 FCR 437. The terms in which that ground is raised suggests a misunderstanding. There was no consideration by the Tribunal of internal relocation, although it had been considered by the delegate. There was no obligation on the Tribunal to consider the possibility of internal relocation as the Tribunal found that the applicant did not face a well-founded fear of persecution in India as a whole. I see no arguable case of jurisdictional error on the basis of the internal flight principle.
The applicant has failed to establish an arguable case of jurisdictional error. Neither is such an arguable case apparent to me from my own reading of the material. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having bee dismissed, costs should follow the event. The Minister seeks costs fixed in the amount of $2200. Scale costs in this instance would be $2500. The applicant did not wish to be heard on costs. I accept that costs of not less than $2200 have been reasonably and properly incurred on behalf of the Minister when assessed on a party-party basis. I will order that the applicant pay the costs and disbursements of and incidental to the application fixed in that amount. I will further direct that the title of the Minister on the amended application be amended to the Minister for Immigration & Citizenship.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM

Deputy Associate:

Date: 18 July 2007