SZNDX v Minister for Immigration and Citizenship
[2009] FCA 614
•18 May 2009
FEDERAL COURT OF AUSTRALIA
SZNDX v Minister for Immigration and Citizenship
[2009] FCA 614CORRIGENDUM
SZNDX and SZNDY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 229 of 2009
RARES J
18 MAY 2009 (CORRIGENDUM 19 JUNE 2009)
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 229 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNDX
First AppellantSZNDY
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
18 MAY 2009
WHERE MADE:
SYDNEY
CORRIGENDUM
1.The file number appearing as “NSD 299 of 2009” on the cover page, orders page and first page of reasons for judgment should be amended to show “NSD 229 of 2009”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 19 June 2009
FEDERAL COURT OF AUSTRALIA
SZNDX v Minister for Immigration and Citizenship
[2009] FCA 614
SZNDX and SZNDY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 299 of 2009
RARES J
18 MAY 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 299 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNDX
First AppellantSZNDY
Second Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
18 MAY 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.The applicants pay the first respondent’s costs fixed in the sum of $1,564.
3.The time within which the applicants may pay the costs under order 2 be extended to 18 May 2010.
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
NSD 299 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNDX
First AppellantSZNDY
Second Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE:
18 MAY 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
This is an application for leave to appeal from a decision of the Federal Magistrates Court that found there was no arguable case that the Refugee Review Tribunal had committed a jurisdictional error in making its decision to affirm the Minister’s delegate’s decisions not to grant the applicants protection visas. The tribunal’s decision was signed on 23 December 2008: SZNDX v Minister for Immigration [2009] FMCA 162.
THE APPLICANTS’ CLAIMS
The applicants claimed to have been Latin Catholics living in Kerala State in India. They lived in, or very near, the capital of the State. The first applicant is the wife of the second applicant, and I shall refer to them as the husband and the wife. The wife claimed that she also belonged to a caste known as the Other Backward Community and that she was imputed to be a member of the Mukkar caste. She claimed that she taught the Bible in classes at a high school attached to a well-known church near where she lived, and to have suffered verbal and physical threats from the BJP political party, and RSS, an organisation associated with the BJP. The tribunal accepted that the wife was a member of the Other Backward Community and was imputed to be a member of the Mukkar caste. The tribunal also accepted that the wife was a teacher of religion and the Bible and that she taught children on Sundays at the high school attached to the church which I have mentioned. On a fair reading of the tribunal’s decision, although it does not make an express finding of this, it accepted her claim to have been a member of the Latin Catholic Church and to have been involved in her claimed religious activities. The husband had no independent claims for protection and based his application on membership of the wife’s family. It is not necessary to consider his claim separately, it being dependent upon his wife’s.
The wife claimed that she taught children from lower castes, among others, some of whom were Hindus and that she had been telephoned at her home and given warnings not to come back to teach Hindu children. She claimed that some of the Hindu children had converted to Christianity, but not through any proselytizing process in which she engaged. She said that there had been about 20 teachers, all teaching the Bible at the high school, but that she conducted classes for lower caste Hindus and that there were problems with Hindus from higher castes. In particular, she claimed that the RSS had been infuriated by the conversion of some of her students. Although she had been teaching from 2002, she claimed that her harassment began in October 2006 and continued until she left for Australia in April 2008. When the threats were first allegedly made, she claimed that the church left it open to her to stop or to continue teaching those children the Bible, but that she continued in circumstances where the church told her that it was not able to do anything about the threats. She claimed that the threats by telephone continued from October 2006 to April 2008, and that sometimes she also was threatened when she left her house. She claimed that those making the threats were in possession of weapons. The wife claimed that four or five other teachers had been threatened and that although the church authorities had complained to the police, because the Communist Party was in government in Kerala, nothing was done to answer the complaints.
THE HEARING IN THE TRIBUNAL
The tribunal in its reasons considered a number of items of country information in some depth. It put to the wife during the hearing the substance of the adverse material in that information upon which it ultimately came to rely. Among others, the tribunal relied on information that the archdiocese had an internet site that related to the church, connected to the high school at which the wife taught.
The tribunal also put to the wife independent country information that about 19% of the community in Kerala were Christians and that, thus, were relatively safer in Kerala State than in other States of India because of their numbers and their being economically well-placed. The country information also suggested that most Christian groups focused on knowledge dissemination rather than conversion and that they conducted their activities peacefully. The tribunal suggested that because the Christian Church and, in particular, the church affiliated to the high school at which the wife taught, had a high profile, that the church would be expected to make public details about any harm or threats to its teachers of the kind that the wife claimed, had that occurred.
The wife asked the tribunal for an additional month to provide “convincing evidence” to it about people who were allegedly seeking to learn of her whereabouts. However, when pressed by the tribunal, she could not state exactly what information those people could provide. She told the tribunal that she could get a letter from her parents that she was a teacher. The tribunal also suggested that the wife could relocate elsewhere in Kerala, but she responded that she could be recognised anywhere there.
THE TRIBUNAL’S DECISION
Ultimately, in its findings and reasons, the tribunal noted that Latin Catholics comprised 13% of the population of Kerala State as compared with 2.3% of the general population of India. It accepted the wife’s claims of membership of her particular social group, religion and caste, but it rejected her claims about her being harassed and threatened. It found that she had embellished her claim in order to enhance her chances of obtaining a visa and that her claim of being verbally threatened by the BJP and RSS for teaching children the Bible at the high school was implausible. The tribunal explained that it had arrived at these findings because the particular church to which the high school was attached was a prominent one in the area in which the wife lived, and the tribunal had no information before it to suggest that Latin Catholics who attended the church suffered harm for reasons of their religion, race or membership of the particular social group, the Other Backward Caste or the Mukkar caste. The tribunal said that if any such harm had occurred, some mention would have been found in the independent sources to which it had referred and that if there were any parishioners attacked or harmed, or the church itself attacked or harmed, those independent sources would have contained reference to it. The tribunal was satisfied that Latin Catholics were able to practice their religion in Kerala without fear of harm
The tribunal also rejected the wife’s claims of being telephoned and warned not to come back to teach the children when Hindus first started attending her Bible classes. Again, it concluded that if any such threats had been made to teachers at the high school by the RSS, the BJP or thugs, some mention would have been made in independent reports or country information. The tribunal did accept that the issue of conversion of Hindus or members of lower castes of Christianity remained highly sensitive and had resulted in assaults and arrests of Christians in India, although it said that those attacks were concentrated in geographic pockets in seven States other than Kerala. The tribunal noted that Kerala had not passed anti-conversion laws and had not banned or limited conversions between religions. The tribunal considered that while there had been sporadic, localised incidents of violence against Christian activists in Kerala, the independent information suggested that was mainly activity that involved the Pentecostal sect of Christianity. The tribunal preferred to rely on the independent evidence and rejected the wife’s claim that she had been perceived by the RSS, and/or the BJP as converting Hindu children to Christianity. Accordingly, it found that she had not been harassed or harmed, or threatened for teaching the Bible as she had claimed, and that she had not suffered any Convention related harm in India.
The tribunal then turned to considering whether, if she were to return to India, there would be a real chance that the wife would suffer harm in the reasonably foreseeable future by reason of her membership of the Latin Catholic religion, or her membership of the Other Backward Caste, or imputed membership of the Mukkar caste in Kerala. It noted that independent country information confirmed that there were still attacks on Christians in India and that these had been underreported. It also accepted that there were attacks on Christian churches in Kerala State, but that these were sporadic, localised incidents of violence against Christian activists, mainly with the Pentecostal sect within the Christian community. The tribunal found that the independent evidence before it indicated that the BJP and other Hindu extremist groups, including the RSS, had been weakened over the past few years and there were no serious threats to religious freedom of Christians and other non-Hindu communities in Kerala. It said that it was satisfied that the Kerala authorities did not acquiesce in allowing RSS or BJP members to attack persons, and it did not accept that the police were in collusion with either of those organisations. It found that the Kerala police had a complaint system that could be used if a person were dissatisfied with the police service or policing action.
The tribunal was satisfied that, on the information before it, Christians were able to worship freely in Kerala, especially in the area in which the wife and husband lived, and that the Kerala authorities did not seek to harm or discriminate against Latin Christians including in the area near where the applicants lived. The tribunal accepted that in Kerala there were deficiencies in State institutions and widespread corruption, but found that independent information before it did not suggest that the Communist Party (CPI-M), the RSS or BJP attack or harm Latin Catholics or teachers of Bible studies in the area in which the husband and wife lived, or in Kerala, generally. The tribunal found that there was no independent evidence that suggested that the Kerala CPI-M government did not protect Latin Catholics or teachers of Bible studies. It was satisfied that the Indian State had put in place reasonable measures to protect the lives and safety of its citizens, including an appropriate criminal law, and the provision of a reasonably effective and impartial police force and judicial system. It found that there was no independent evidence to support the wife’s claim that she, her husband, or family would not obtain State protection in India. It was not satisfied that any of the matters complained of by the applicants gave rise to a real chance of her or their persecution now, or in the reasonably foreseeable future.
THE DECISION OF THE TRIAL JUDGE
The applicants raised three grounds of jurisdictional error before the trial judge, namely, that the tribunal:
·did not sufficiently deal with the wife’s claim that she was a member of a particular social group and she was not given the opportunity to obtain more evidence from India in order to substantiate that claim after the hearing;
·had made a legal mistake by stating in its decision that there was no sufficient evidence to consider the wife as a member of a particular social group;
·had not complied with s 424A of the Migration Act 1958 (Cth) as it did not put to the wife in writing, after the hearing, “adverse information that had arisen during the hearing”.
The wife also claimed that the tribunal had misunderstood her claims.
His Honour found that there had been no error by the tribunal in dealing with the wife’s claims to belong to a particular social group. As I have set out above, the tribunal expressly accepted that she was a member of the Other Backward Caste and she was imputed to be a member of the Mukkar caste. It implicitly accepted that she was a Latin Catholic who taught the Bible to lower caste Hindu children at the high school. I cannot discern how it could possibly be arguable that the tribunal did not sufficiently deal with the wife’s claim to have been a member of a particular social group. His Honour correctly rejected this ground.
The other aspect of grounds one and two was that the wife claimed she had not been given an opportunity to obtain more evidence from India in order to substantiate her claim after the hearing. The tribunal was not obliged to provide any further particular time since the applicants had to bring forward at the hearing their case and to present evidence and submissions as they had been told in the notice of their invitation to appear, given under ss 425A and 426 of the Act. In any event, when the tribunal raised this aspect with the wife during the course of the hearing, she said that she could get a letter from her parents that she was a teacher. However, the tribunal accepted that she was a teacher of religion and the Bible at the high school as she claimed, so that nothing would have turned on the provision of this further information. It only could have corroborated the finding that the tribunal made. His Honour correctly rejected this ground.
The third ground considered by his Honour was whether the tribunal had failed to comply with s 424A. The ground had no particulars to support it. The tribunal was entitled to rely on independent country information without putting that material to the wife under s 424A(1) because of the exception in s 424A(3)(a). But, in any event, according to the decision record the tribunal discussed with the wife, at length, the matters in the independent country information during the course of the hearing. His Honour was correct to reject this ground.
THIS APPLICATION FOR LEAVE TO APPEAL
The draft notice of appeal asserts the following:
“(1) jurisdictional error
(2) Breached of natural justice;
(3) Breached of section 424A of the Migration Act”
There were no particulars given for any of these matters. To the extent that they repeat the grounds before his Honour, I am unable to see that they articulate or identify any arguable basis on which his Honour erred in rejecting the grounds of the amended application argued before him. Nor do they disclose any error by his Honour.
As his Honour noted, there was an unparticularised claim of jurisdictional error in the first version of the applicants’ application before the Federal Magistrates Court, but the ground had no particulars. It was, as his Honour found, meaningless. There was no error in that finding, and the same may be said of the claims here.
The wife wrote a written submission in support of the application for leave to appeal. I have considered its contents. In the submission the wife reasserted that she has a well-founded fear of persecution for reasons of her Christianity, caste and social group, based on threats by the RSS and BJP. She asserted that the tribunal had a legal obligation to deal with every element of her Convention claims and that the tribunal had failed to do so.
In my opinion, that assertion is not sustainable for the reasons that I have already given. The tribunal dealt separately with, and accepted each of her claims based on her religious belief and membership of social groups or castes. It rejected her claims based on threats to her as being factually unfounded.
Next, the wife’s written submission complained that in arriving at its finding that the Indian State gave protection to its citizens, the tribunal had failed to put to her and her husband, sufficiently during the hearing the independent country information upon which it relied, and that it should have written to them under s 424A of the Act. In my opinion, that is not an arguable contention. The tribunal was entitled to rely on the independent country information as it did.
In addition, the wife’s submission relied on a decision of the Full Court in SZKCQ v Minister for Immigration and Citizenship (2008) 170 FCR 236 to assert that s 424A of the Act required the tribunal to draw critical matters to the attention of an applicant for review, and that it was a jurisdictional error not to have done so here. SZKCQ 170 FCR 326 was concerned, relevantly, with the operation of s 424 of the Act in connection with the tribunal obtaining information from a person. It did not deal with the issue of general country information. The decision does not appear to have any relevance here.
Ultimately, it was a matter for the tribunal to determine whether or not it accepted the evidence of the applicants on the matters critical to the establishment of their claims. The court’s role is to consider whether the procedure adopted by the tribunal accorded with the law laid down in the Act and, to the extent it applied, at common law, and also to determine whether the tribunal acted within its jurisdiction. An essential matter for the tribunal was to make findings of fact based on its acceptance or rejection of the account given by the wife. Ultimately, the tribunal found that it could not accept the wife’s evidence that she had been threatened as she claimed. That essential finding was the basis on which the tribunal arrived at its rejection of her claims. I am unable to see any basis on which it can be said the tribunal made a jurisdictional error in arriving at that finding, nor am I able to see how it could be said that the tribunal denied the wife or husband natural justice or breached any obligation applicable to it under s 424 on the material before me. In that circumstance, I am not able to see that his Honour erred in finding that there was no arguable case that the tribunal had made a jurisdictional error which, if established, would attract an entitlement to constitutional writ relief.
CONCLUSION
I must, therefore, reject the application.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 9 June 2009
The Appellants: The second appellant appeared in person Solicitor appearing for the First Respondent: R White of Sparke Helmore
Date of Hearing: 18 May 2009 Date of Judgment: 18 May 2009
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