SZMYX v Minister for Immigration and Citizenship

[2009] FCA 835

FEDERAL COURT OF AUSTRALIA

SZMYX v Minister for Immigration and Citizenship [2009] FCA 835

SZMYX and SZMYY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 377 of 2009

BESANKO J
6 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 377 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMYX
First Appellant

SZMYY
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	6 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants 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 377 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMYX
First Appellant

SZMYY
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	6 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court: SZMYX and Anor v Minister for Immigration and Citizenship [2009] FMCA 306. On 15 April 2009, that Court dismissed an application by the appellants for constitutional writs directed to the Refugee Review Tribunal (“the Tribunal”).

2. The appellants are husband and wife and both are citizens of India. They arrived in Australia on 23 April 2008. They made applications for Protection (Class XA) visas (“protection visas”) on 22 May 2008. The first appellant made her application on the basis that she fell within the definition of a refugee and the second appellant made his claim on the basis that he was a member of a family unit. A delegate for the Minister for Immigration and Citizenship refused the applications on 21 June 2008. The appellants made an application to the Tribunal for review. On 15 October 2008, the Tribunal made decisions not to grant protection visas to the appellants.

3. On 25 November 2008, the appellants made an application to the Federal Magistrates Court for constitutional writs directed to the Tribunal. The application was amended on 16 February 2009. As I have said, the Federal Magistrates Court made an order on 15 April 2009 that the application be dismissed.

4. The first appellant lodged a statement consisting of 19 paragraphs with her application for a protection visa. The statement was referred to by the Tribunal member in his reasons. It is convenient to refer to it because it provides a summary of the first appellant’s claims.

5. The first appellant states that she was born on 25 May 1971 in a place (which it is not necessary to identify) in the State of Kerala in South India. In 1972, her family moved to a place (again, which it is not necessary to identify) in Trufandrum. The appellant states that she belongs to the Christian Other Backward Community in Kerala. She states that this caste is considered as Other Backward Community (OBC) in the State of Kerala in India and that she faces discrimination in her education and social life due to her caste. In her statement, the appellant gives details of her education.

6. In 1986, the appellant became an active member of the Student Federation of India (SFI), which she states is the student political wing of the Communist Party of India (CPI(M)). She was involved in the political activities of the SFI. There was disagreement between her student wing and the student wing of the Indian National Conference, namely, the Kerala Student Union and that disagreement led to confrontations, including physical assaults, from time to time.

7. The first appellant states that in 1990, violence between Christians and Muslims was escalating and, at about this time, her parents were assaulted by Muslim armed thugs. She states that from 1990 to 2002 she faced discrimination and “harassments” by the Muslims in her village and the “harassments” included verbal abuse by the Muslim thugs. She states that, in 2002, she and other women were sexually harassed by Muslim thugs in a public place. She states that she has continued to be harassed and that her house was burnt by Muslim thugs. She sought assistance from her political party, but they did not give her support. She received assistance from the National Congress Party. She states that, in early 2006, she refused to assist the CPI(M) in its political activities and she supported the Congress Party. Since she did that she claims that she has been badly treated by the CPI(M). She has been verbally assaulted and assaulted with a wooden stick. She has complained to police, but with no success. She claims that she has a political profile and that she faces significant economic hardships and mistreatment by the CPI(M) due to her religion and political profile.

8. The Tribunal member examined what he described as the appellant’s main claim, namely, that she had a well-founded fear of persecution for reasons of political opinion. The Tribunal member referred to the first appellant’s evidence and he noted a number of contradictions in her evidence. He was not satisfied as to a number of matters, but it is not necessary to set them all out. A significant finding was that he did not accept the first appellant’s evidence that she was involved in the 2006 elections as an active supporter of the Congress Party and, therefore, he did not accept that she was adversely regarded by members of the CPI(M). The Tribunal member rejected the first appellant’s claim in so far as she alleged that she had a well-founded fear of persecution for reasons of political opinion.

9. The Tribunal member examined the first appellant’s claim to have a well-founded fear of persecution for reasons of religion. The Tribunal member accepted that the appellant is a Christian and, as he put it, a Roman Catholic in particular. The Tribunal member noted inconsistencies in the first appellant’s evidence as to an alleged assault on her parents. He was not satisfied that there was any such attack on the first appellant’s parents. He concluded that the alleged incident involving sexual harassment did not occur, given the lack of corroboration and the conflict in the first appellant’s evidence. He said that any disputes between Christians and Muslims related to fishing rights, not religion. The Tribunal member expressed his conclusion as follows:

   “Given the Tribunal’s findings above concerning the claims she has made about her fears regarding Muslims, the lack of any claim of past harm for reasons of religion at the hands of Hindus, the relatively ‘sporadic’ nature of anti Christian activity in Kerala, the lack of any evidence to suggest the applicant has a particular leadership profile as a Christian, and the overall number of Christians in Kerala, the Tribunal finds that the risk of the applicant facing harm for reasons of religion in Kerala is so small as to be negligible.”

10. The Tribunal member considered the first appellant’s claim to have a well-founded fear of persecution by reason of her membership of a group comprising “backward caste persons”. He concluded that “she would not face discrimination sufficiently serious to constitute ‘serious harm’ because she is a member of an OBC, if she were to return to India in the reasonably foreseeable future”.

11. On the application to the Federal Magistrates Court for constitutional writs, the federal magistrate considered complaints by the first appellant that:

    1.The Tribunal had acted in breach of s 424A of the Migration Act 1958 (Cth) (“the Act”);

    2.The Tribunal had misapplied s 91R(2A) of the Act with reference to the issue of relocation “in India”; and

    3.The Tribunal had misused country information.

12. The federal magistrate also considered miscellaneous complaints made by the first appellant. I will discuss the federal magistrate’s reasons in the course of my discussion of the grounds of appeal to this Court.

13. The notice of appeal contains four grounds of appeal. The first two grounds of appeal are similar and may be dealt with together. It is alleged by the first appellant that the Tribunal acted in breach of s 424A of the Act. The Tribunal conducted a hearing in relation to the review on 21 July 2008. The first appellant attended the hearing and gave evidence. The second appellant did not attend the hearing. On 6 October 2008, the first appellant wrote to the Tribunal in the following terms:

    “I refer to my hearing held and kindly request you to take into account the current violation against Christian minority in India.

    I cannot relocate outside of Kerala within India as the Christians minorities are undergoing human rights abused based [sic] on religion in the neighbouring state.

    Please advise me if any information is found adverse to me after the hearing.

    I enclose copy of medical certificate as requested.”

14. The first appellant’s contention is that the Tribunal, which made its decision on 15 October 2008, should have contacted her before making its decision and advised her of information adverse to her case.

15. This complaint must be rejected for the reasons given by the federal magistrate. First, the Tribunal member’s “disbelief” of the first appellant’s evidence “arising from inconsistencies” is not “information” for the purposes of s 424A of the Act: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [18], per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 476-477 per Finn and Stone JJ.

16. As to other material which might otherwise have fallen within s 424A(1) of the Act, the federal magistrate found, correctly in my view, that that material fell within one or more of the exceptions in s 424A(3).

17. The federal magistrate went on to consider whether there had been a breach of s 425 of the Act. He referred to SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) and he applied the relevant principles of that case to the facts of this case. He found that all issues determinative of the review had been raised with the first appellant by the Tribunal at the hearing. He concluded that there had not been a breach of s 425 of the Act.

18. The third ground of appeal is that the Tribunal failed to consider properly the test to determine whether the appellants would suffer serious harm within s 91R(2A). Again, this was a matter dealt with by the federal magistrate, again, in my respectful opinion, he dealt with it correctly. He noted that the exact nature of the complaint was unclear. In so far as the complaint was a failure to test whether the appellants would suffer serious harm if they were asked to relocate in India, the federal magistrate said that, on the facts of the case, the issue of relocation was immaterial. In so far as the complaint was that the Tribunal did not consider the “genuine claim” to have suffered “many times because of my caste and my religion”, the federal magistrate said:

    “The complaint that the Tribunal did not consider the ‘genuine claim’ of suffering because of the applicant’s ‘caste and religion’ plainly does not rise above a request for this Court to engage in merits review. Any plain reading of the Tribunal’s decision record reveals that the Tribunal plainly did consider the applicant’s claims in this regard. But for reasons which it gave, and which were open to it, found that it could not be satisfied that the applicant’s claims amounted to a well-founded fear of persecution for a Convention reason (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). This ground also does not succeed.”

19. The fourth ground of appeal is that the Tribunal member incorrectly used the country information and was pre-occupied and did not “have a fresh look”. The federal magistrate correctly concluded that the weight to be attributed to country information is a matter for the Tribunal and that, to the extent the ground of appeal raised a contention that the Tribunal was biased (that is, it did not have a fresh look), it must be rejected. There is no error in the federal magistrate’s reasons.

20. The appellants applied to put further material before the Court. The material consists of media articles about clashes in May this year between groups comprising Muslims on the one hand and Christians on the other. There is no reason for me to receive the material as further evidence under s 27 of the Federal Court of Australia Act 1976 (Cth). It is not relevant to any issue on the application for constitutional writs. In other words, even if it had been in existence at the time of the hearing before the Federal Magistrates Court, the material would not have been relevant to the application before that Court. I reject the tender of the material I marked as “MFI A2”.

21. The grounds of appeal must be rejected essentially because there is no error in the federal magistrate’s reasons. The appeal must be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:
Dated:       6 August 2009

The Appellants appeared in person.
Counsel for the Respondents:	Mr Y Shariff
Solicitor for the Respondents:	Clayton Utz Lawyers

Date of Hearing:	4 August 2009
Date of Judgment:	6 August 2009