SZLJF v Minister for Immigration
[2008] FMCA 1560
•12 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLJF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1560 |
| MIGRATION – Review of decision of RRT – where applicant claimed persecution as a Christian – whether claims credible – whether Tribunal exhibited apprehended bias in its questioning. |
| Migration Act 1958, ss.36(2)(a), 91R, 424A |
| WALT v Minister for Immigration [2007] FCAFC 2 SBCC v Minister for Immigration [2006] FCACF 129 NBKT v Minister for Immigration [2006] FCAFC 195 |
| Applicant: | SZLJF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1600 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 12 November 2008 |
| Date of Last Submission: | 12 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2008 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1600 of 2008
| SZLJF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India. He arrived in Australia on the 11 May 2007 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 14 May 2007. On 29 May 2007 the delegate of the Minister refused to grant a protection visa and the applicant applied for a review of that decision from the Refugee Review Tribunal. The Tribunal affirmed the delegate's decision on the 9 August 2007 but that decision was, by consent, remitted by this court to the Tribunal to be heard and determined according to law. The applicant was invited to, and did attend, a further hearing before the Tribunal and on the 19 May 2008 the second Tribunal determined to affirm the decision not to grant him a protection visa. The decision was handed down on the 5 June 2008.
The convention ground asserted by the applicant to warrant him being a person to whom Australia owed protection obligations was that of religion. The applicant claimed he was a Christian. He said that he had been born in Kerala State in India and very shortly thereafter had been baptised. He told how his family had been involved in the church in his home town and how, when he had grown up, he and his brother and brother-in-law became involved through it with assisting the Dalit caste of peoples in their region. He told how after anti-conversion laws were passed the BJP Government began to discriminate against Christians and Muslims and there was concern expressed about the activities of Christians attempting to convert Muslims or Hindus.
The applicant described a series of occasions upon which he had been arrested by the police who were Muslim police officers and who threatened him with being sent into Pakistan should he be involved in converting Muslims. He told how he was required to pay two lakhs Indian Rupees to the police and of suffering other indignities and physical abuse which, had the Tribunal accepted it as true, would have represented persecution within the meaning of 91R of the Migration Act 1958 (the “Act”).
The Tribunal questioned the applicant on his claims and also on his knowledge of Christianity. In its findings and reasons commencing at [CB 122] the Tribunal set out its concerns about the applicant's claims. These included the attitude that he had taken to the Christian religion as evidenced by the fact that although he had said he was a Christian when he came to give his evidence he affirmed rather than swearing an oath on the Bible. When the applicant was questioned about this the responses that he gave that he "go according to what my mind dictates" and he affirmed "according to conscience" did not impress the Tribunal.
The Tribunal was equally unimpressed by the responses of the applicant to some questions about Christianity, in particular about baptism and the nature of original sin. The Tribunal took the view at best the applicant was confused about various concepts.
The Tribunal then proceeded to set out in some detail a number of inconsistencies in the applicant's evidence, in particular his failure to have made any statement about his account being the place in which money was deposited that had been collected for the benefit of the Dalits. The Tribunal was concerned that some of the applicant's statements about his arrests by the police and his failure, although he been to Singapore on three occasions, to try and seek asylum in that country. The Tribunal concluded at [CB 126] that it could not be satisfied that the applicant was a genuine practising Christian or that he had been involved in any of the activities claimed. The Tribunal made these findings on the basis of its views about the credibility of the applicant.
On the 23rd of June 2008 the applicant filed an application with this court claiming that the Tribunal had erred on the following bases:
“(a) Jurisdictional error;
(b) Breach of procedural fairness.”
These claims were later expanded in a document entitled "Submissions” which is made out on the form of an application and filed with this court on the 27 October 2008. The grounds of application in that document are eightfold. The first is merely a statement that the applicant did not satisfy the criterion set out in s.36(2)(a) of the Act. The second suggests that the Tribunal failed to accord him procedural fairness under s.424 of the Act by "relying on independent evidence as to the prevalence of claim about political persecution”. My reading of the Tribunal's decision reveals that the only piece of independent evidence utilised by the Tribunal was evidence relating to the position in Singapore and I fail to see how this is relevant to the ground alleged. The third matter raised is that the Tribunal did not find that the applicant was a person who satisfied the definition of "refugee” but, in this particular case, the Tribunal's conclusions were based entirely on its views as to the applicant's credit; having decided that it could not accept the applicant's story there was nothing left which would indicate that the applicant was a person to whom Australia owed protection obligations. Findings of credit are matters for the Tribunal.
The fourth complaint is that the applicant had given adequate evidence to the Tribunal that he was physically assaulted but the Tribunal failed to consider this a genuine claim. The Tribunal concluded that the claim was not genuine. That is a finding of fact by the Tribunal and again entirely within its jurisdiction.
The fifth claim is that the Tribunal failed to consider properly whether the applicant would suffer serious harm pursuant to s.91R(2)(a) of the Act if he was asked to relocate in India. There was no discussion of relocation in this case. It was not necessary. Relocation is only a matter to be considered if a Tribunal comes to the conclusion that there is some merit in the applicant's claims. In this case it decided that there was no merit.
Point 6 relates to the Tribunal finding that the applicant was not a Christian. He annexes to the document a birth certificate and two letters from St Joseph's Church in Santhipuram. These are dated the 23 October 2008 and so were clearly not before the Tribunal. The court is unable to accept them as new evidence. They should have been put before the Tribunal but were not.
The seventh ground is that the Tribunal did not put information to the applicant in writing and invite comment upon it. But the information that the applicant refers to is not particularised in any way and, therefore, the court cannot hazard a guess as to what it might have been. In Mr Smith's helpful written submissions, he says this:
“The only relevant information could be the information referred to in the first Tribunal's letter of the 3rd of July 2007. The Tribunal stated expressly that it did not rely on the information that has been referred to in the original Tribunal's purported letter under s.424A [CB 127] at [102]. In other words, it did not consider that the information referred to in that letter would be the reason or part of the reason for its decision. Accordingly, there was no obligation under s.424A to give the applicant written particulars of that information: Applicant VEAL of 2002 v Minister for Immigration (2005) 225 CLR88 at 924 at [12].”
I respectfully adopt what Mr Smith said in this regard.
Finally, the applicant argues that there was a serious misdirection made by the Tribunal by denying him an opportunity to explain at the hearing. I am not satisfied that this allegation has been made out. The applicant has not produced a transcript of the hearing and a reading of the Tribunal's decision would indicate all the matters that he raised were taken into account and dealt with.
Before me today the applicant said that because of his ignorance he could not present enough supporting evidence and he assumed that that was why he had lost. He asked me to give him another opportunity to obtain evidence and convince the Tribunal of his plight in India. This articulation of the applicant's position is to my mind accurate, but, as I told him, the court is unable to provide him with the relief he seeks because this court is only able to refer matters back to the Tribunal if the decision made by the Tribunal is one made out of jurisdiction. He has to show that there was mistake in the Tribunal's decision that went to its jurisdiction. As Mr Smith put it, the applicant had a migration agent to assist him, he attended a hearing and answered questions posed by the Tribunal and he had submitted lengthy written statements. All the Tribunal was obliged to do was to provide him with an opportunity to do those things and it did so. The existence of additional material not produced is not a mistake of the Tribunal's.
Mr Smith submitted that the way in which the Tribunal came to its credit findings cannot be impugned because the decision was arrived at after consideration of the whole of the evidence and had a rational basis and because the applicant was aware that his credit was an issue from the conduct of the proceedings. I think that is correct and that both as a matter of substance and procedure the Tribunal is entitled to make the credit findings which it did.
The Tribunal, having come to the conclusion that the applicant could not be believed in his story, there was, as I have previously said, nothing for it to do but to affirm the decision of the delegate. The applicant had no other claims upon Australia’s protection obligation.
In his final submission to me the applicant indicated that he thought that the Tribunal had gone too far in its exploration of his religious commitment and indicated that he believed that this represented at the very least a case of apprehended bias. The extent to which a Tribunal is entitled to raise questions about a person's religion has been considered in a number of cases included WALT v Minister for Immigration [2007] FCAFC 2; SBCC v Minister for Immigration [2006] FCACF 129 and NBKT v Minister for Immigration [2006] FCAFC 195. It is clear that the Tribunal is not to take on the role of arbiter of doctrine with respect to any religion but it may explore a person's religion to determine whether a claim is genuine. My reading of the way in which this subject was considered by the Tribunal and the applicant was questioned is that the questioning was of a type that would have been considered acceptable by the Full Bench in WALT where the court said that:
“[29] But it does not follow that the questioning of a person, even a person as young as 11, who claims to have in effect given up his family and community connections for having espoused a particular religion, about that person’s beliefs on matters which that particular religion teaches or its tenets, means that the Tribunal is necessarily becoming the arbiter of the doctrine of that religion.
[30] We agree with the learned primary judge, that the Tribunal did no more than that. It did not set a level of knowledge of, and commitment to, Christianity which the appellant was required to meet to satisfy it that he had converted to Christianity. It merely explored the level of his knowledge and understanding, and his commitment.”
I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $4,000.00.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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