SZMVW v Minister for Immigration & Citizenship

[2009] FCA 824

FEDERAL COURT OF AUSTRALIA

SZMVW v Minister for Immigration & Citizenship [2009] FCA 824

SZMVW and SZMVX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 317 of 2009

BESANKO J
5 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 317 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMVW
First Appellant

SZMVX
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO  J
DATE OF ORDER:	5 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants are to pay the first respondent’s costs of the appeal.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 317 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMVW
First Appellant

SZMVX
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO  J
DATE:	5 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court: SZMVW & Anor v Minister for Immigration and Citizenship & Anor [2009] FMCA 282. On 27 March 2009, the Federal Magistrates Court made an order that the appellants’ application for constitutional writs directed to the Refugee Review Tribunal (“the Tribunal”) be dismissed.

2. The appellants are citizens of India. They arrived in Australia on 27 February 2008, and they applied for Protection (Class XA) visas (“protection visas”) on 7 April 2008. A delegate of the Minister for Immigration and Citizenship refused their applications on 21 May 2008. The appellants applied to the Tribunal for review of the delegate’s decisions. The Tribunal handed down its decision on 23 September 2008. The Tribunal decided to affirm the decisions of the delegate not to grant protection visas to the appellants.

3. The first appellant lodged a statement consisting of 29 paragraphs with her application for a protection visa. The Tribunal member set out in her reasons a large part of the statement. It is convenient to summarise the appellants’ claims by reference to the statement.

4. The first appellant gives details of her date and place of birth. She states that in India she belonged to a backward community in the state of Kerala and that her religion was “Latin Catholic”. She sets out details of her education. She states that, in 1987, her husband became an active member of the Communist Party of India (Marxist) (“CPI(M)”). She states that, since becoming a member, her husband had attended a party class every week at a party member’s house and she outlines her husband’s involvement in CPI(M) activities. In 1994, the first and second appellants were married. They did not have the support of their respective parents and relatives. The first appellant states that she joined Bible discussion groups and, in 2000, she was appointed a teacher for Sunday Bible classes. She states that, as a result of the fact that she was teaching Bible stories to non-Christian children, she was harassed and her husband was severely assaulted. The BJP party filed a case against her husband, but he fled the country. The first appellant said that she and her children faced harassment because of the action being taken by the BJP party against her husband. The CPI(M) local members would not assist the first appellant because of her religion and her religious teaching “for non-Christians”.

5. The first appellant states that, at some stage between June 2007 and November 2007, the CPI(M) approached her husband and asked him for funds to support them. He refused on the ground that they had not supported and protected his wife (that is, the first appellant) and his children. According to the first appellant, the CPI(M) then influenced the police to arrest her husband and “to take harsh approach on my husband’s case”. The first appellant states that her husband “realised that the State of Kerala police would harm him for political reasons and he would be imputed as a person opponent to the CPI(M) party and the BJP party”.

6. The first appellant states that, at the end of December 2007, persons she did not know telephoned and threatened both her and her husband and told them that the first appellant should stop teaching the Bible to non-Christians. The first appellant states that she understood that the “BJP was taking advantage of [her] husband’s desertion from the CPI(M) party and CPI(M) was planning to eliminate [her] with their power and position and CPI(M) was influencing the State of Kerala police to punish [her]”.

7. After setting out a large part of the statement, the Tribunal member summarised the evidence given by the first appellant at a hearing on 4 August 2008 and the evidence given by both appellants at a hearing on 22 August 2008.

8. The Tribunal member said that she did not find the appellants to be credible on “some key aspects of their claims”. The Tribunal member said that she was not satisfied that the appellants left India because of a fear of persecution as described in their application and evidence before the Tribunal.

9. The Tribunal member said that, in essence, the appellants fear persecution because the first appellant was teaching Bible stories to non-Christian children. The Tribunal member said that she accepted that the appellants are Catholics. She said that she accepted that the first appellant held a position as Bible teacher at her local church in Cochin. However, she said that she was not satisfied that the first appellant was teaching Bible stories to non-Christian children at her home as claimed. The Tribunal member said that she was satisfied that the first appellant was teaching non-Christian children school-related subjects such as Malayalam at her home.

10. The Tribunal member set out the matters which led her to conclude that the appellants were not truthful or credible. Those matters were said to be “contradictions, implausibility and inconsistencies” in the evidence and material before the Tribunal. I will not set out the various matters.

11. The Tribunal member said that she was not satisfied that the appellants had suffered persecution at the hands of the BJP, CPI(M) or the police. She said:

    “The Tribunal is not satisfied that the incidents described by the applicants ever occurred. The Tribunal is not satisfied that the applicant’s wife was teaching
    Bible stories to non-Christian children. The Tribunal is not satisfied that the applicant husband was taken to the police station or that there is any type of summons, warrant or file relating to the incidents described by the applicants. The applicants claimed that they would provide documents in support of their claims, yet to date, no documents have been provided. The Tribunal is prepared to accept that the applicant wife was teaching at the local Catholic church. The accounts from the applicants relating to the most significant event (September 2001) vary dramatically. The Tribunal is not satisfied that any persons are trying to contact the applicants’ children in an effort to find the applicants. The Tribunal is not satisfied that the police were intending to arrest the applicants and would have done so, had they not departed India.

    
    

    The Tribunal understands the applicants feel tense and nervous when giving evidence. The Tribunal accepts that the applicant wife in particular was not feeling very well during the resumed hearings. However, the Tribunal is not satisfied that this was the reason for the abovementioned discrepancies. The Tribunal finds this explanation unpersuasive and unconvincing. There is no credible evidence from which the Tribunal could find that the applicants stand a risk of suffering serious harm in the reasonably foreseeable future if they return to India.”

12. In the circumstances, the Tribunal member was not satisfied that the appellants had a well-founded fear for a Convention reason.

13. The appellants’ original application to the Federal Magistrates Court for constitutional writs was made on 20 October 2008. They amended their application and the amended grounds were as follows:

    “1.The Tribunal failed to consider all the claims made by the applicants and accordingly failed to consider the Application.

    2.The Tribunal appeared to regard the claims for protection as based on fear of persecution for religious reasons but although acknowledging the claims of the applicants that they were exposed to adverse political behaviour failed to consider the claims for protection on this basis.

    3.The Tribunal failed to fully consider the claims made by the applicants outlined in the statement provided in support of the application (at green book P.33-35, in particular at par.23).”

14. The federal magistrate said that the decision of the delegate made it clear that the principal applicant was the female appellant (that is, the first appellant). He set out the amended grounds of the application and, because of an argument put to him, he set out paragraph 23 of the first appellant’s statement. I have summarised the contents of that paragraph above (at [5]). The appellants’ submission to the federal magistrate was that the first appellant had claimed before the Tribunal that she feared persecution in India on the basis of her religion and political opinion and yet, the Tribunal had not addressed her claimed fear of persecution by the BJP and CPI(M). The federal magistrate noted the obligation on the Tribunal “to consider all claims of an applicant” and he referred to Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389.

15. The federal magistrate considered that there were two answers to the appellants’ submission.  The first answer was that the claim in paragraph 23 of the first appellant’s statement was a claim of her husband (that is, the second appellant) and yet he had specifically indicated that he was not making a claim. The Tribunal would not have erred if it did not consider it. The second answer given by the federal magistrate was said by him to go to the “root of the whole claim”. The federal magistrate said that, even if there was some responsibility on the part of the Tribunal to consider the husband’s claim set out in paragraph 23, he was not satisfied that the Tribunal had erred. He reached that conclusion because he said that all the claims made by the first appellant must be rejected following the rejection of the claim by the first appellant that she was teaching Bible stories to non-Christian children. He said:

    “The essential point in the applicant's claim is that she was teaching non-Christian children bible stories.  It was as a result of this activity that the alleged problems occurred.  These problems included the alleged actions of the BJP activists which resulted, inter alia, in her husband being cut and her being frightened.  These activities also resulted, she says, in her husband and her being refused assistance by the CPI(M) following which her husband decided that he no longer wished to contribute towards the finances of that party and thus came into conflict with them in the manner described at para.23.  If, as the Tribunal found, it cannot be satisfied that the wife did teach bible stories to non-Christian children then there were no grounds on which the BJP would attack her or her husband and if there were no grounds upon which the BJP would attack her there was no reason for her to call in aid the CPI(M) and if the CPI(M) was not called in aid and refused to help her husband would have no reason not to support them financially.  Thus, all the claims made by the applicant fall with the Tribunal's conclusion that she was not teaching bible stories to non-Christian children.

    The applicant in both her amended grounds of application and in her written submissions suggested that the Tribunal did not consider her claim for persecution for political reasons. The political reasons that she claims are that the persecution was allegedly effected by members or supporters of the BJP and members or supporters of the CPI(M). As Mr Johnson points out in his helpful written submissions, one has to look at the essential reason for the persecution or discrimination, not who it was that was carrying it out. The essential reason for the discrimination was religious. It was because she was teaching Bible stories to non-Christian children. It matters not who was offended by those actions. Their reason for being offended and their reason for allegedly persecuting her were religious ones and not political ones.”

16. The appellants, in their notice of appeal, claim that the Federal Magistrates Court erred in failing to find a jurisdictional error, a breach of the rules of natural justice or a breach of s 424A of the Migration Act 1958 (Cth) (“the Act”). A breach of s 424A of the Act was not a ground of the appellants’ application to the Federal Magistrates Court. One of the appellants has written:

    “I am unrepresented. I will file and serve an amended notice of appeal and written submissions when required by this Court.”

17. No amended notice of appeal was filed by the appellants. Nor were written submissions filed by the appellants despite an order made by a Deputy District Registrar on 22 April 2009 that they file and serve written submissions.

18. There are no particulars of the alleged jurisdictional error or breach of the rules of natural justice. There is nothing to suggest a breach of s 424A of the Act. It appears that the Tribunal member proceeded under s 424AA of the Act and there is nothing to suggest that the provisions of that section were not complied with.

19. The appellants were unrepresented before me. The first appellant made oral submissions on behalf of both appellants. The thrust of what she submitted was that the Tribunal had considered their claims in so far as they were based on religion, but had not considered their claims in so far as they were based on political opinion. This is the submission addressed by the federal magistrate in the two paragraphs I have cited above (at [15]). With respect, I see no error in the reasoning of the federal magistrate.

20. In those circumstances, the appeal must be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:
Dated:        5 August 2009

The Appellants appeared in person.
Counsel for the Respondents:	Ms T Quinn
Solicitor for the Respondents:	DLA Phillips Fox

Date of Hearing:	3 August 2009
Date of Judgment:	5 August 2009