SZNHF v Minister for Immigration
[2009] FMCA 1220
•26 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNHF v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1220 |
| MIGRATION – Review of decision of RRT – no error found. |
| Migration Act 1958, ss.422B, 424 |
| Applicant: | SZNHF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 478 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 26 November 2009 |
| Date of Last Submission: | 26 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2009 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr P Reynolds |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 478 of 2009
| SZNHF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India who arrived in Australia on 9 July 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 19 August 2008. He was interviewed by a delegate who, on 10 November 2008, declined to grant a protection visa. On 2 December 2008 the applicant applied for review of that decision from the Refugee Review Tribunal. On 22 December 2008 the Tribunal wrote to the applicant seeking information from him pursuant to ss.424 and 424A of the Migration Act 1958 (the “Act”). The applicant was invited to a hearing on 29 January 2009 which he attended. On 2 February 2009 the Tribunal determined to uphold the decision not to grant him a protection visa and handed that decision down on 3 February 2009.
The Convention ground upon which the applicant claimed he was a person to whom Australia owed protection obligations was that of religion. The applicant is a Christian from the State of Kerala. He came to Australia for World Youth Day. The applicant told of a series of incidents from 2001 to 2007 in which he was targeted by people he claimed were associated with the BJP and the RSS because of his religious commitment and his association with the Catholic Youth Movement of which he was a member. The applicant told that in 2001 there were attacks upon him and his friends and, later, an attack upon his house. At the end of 2001 he left Kerala and went to Gujarat where he worked until 2004. But in November 2004 there was a serious attack against the school at which he was working which he put down to the fact that he was employed there. In December 2004 he told that he went to Andhra Pradesh and again worked at a Christian school as a driver until 2007. But he was restricted in his ability to work in Andhra Pradesh because of his association with the Catholic Youth Movement and he became the target of the BJP and the RSS.
In November 2007 he returned to Kerala and got married but he could not move around or live freely with his family. He stated that the State of Kerala was now governed by the CPI(M) and that they were unsympathetic to Catholics. One of the concerns that he had of continual persecution was that he was a witness in court proceedings which arose out of the May 2001 attack. He told that the court case was still continuing there many years later because the perpetrators of the attack had political influence which allowed the case to be continually adjourned and that every time it was adjourned he attended the court and so he was known to the perpetrators and feared their revenge.
The Tribunal questioned the applicant about his concerns and discussed with him differences in the statement which he had made in his PVA, the evidence which he had given to the delegate and then the evidence which he had given to the Tribunal. The Tribunal pointed out inconsistencies in the evidence and, in particular, with regard to some of the dates of the incidents about which the applicant was complaining. The Tribunal considered some independent country information relating to the situation of Christians in India and in Kerala in particular. At [81] [CB 104] the Tribunal says:
“The Tribunal found the applicant to be a person who completely lacked credibility. His oral evidence changed in many respects throughout the hearing, there were a number of significant inconsistencies between his oral evidence to the Tribunal and his written claims and a number of important claims were raised for the first time in his oral evidence to the Tribunal. To the extent that there were any inconsistencies between the applicant’s oral evidence given in his interview with the delegate and any other evidence, the Tribunal did not consider such information to be a reason or part of the reason for affirming the decision under review and the Tribunal placed no reliance on such information.”
The Tribunal then set out at [82] [CB 104] its specific concerns with the applicant’s evidence. Much of these concerns relate to dates. It may well be that another Tribunal would have taken a more sympathetic approach to the inconsistency in the dates which are not, to my mind, particularly great. But the fact is that it is this Tribunal which is making its decision about the applicant’s credibility and not the court and the Tribunal cannot be criticised if it utilises small inconsistencies in dates to come to a conclusion about credibility provided there is evidence of those inconsistencies.
The Tribunal also noted that despite his concerns the applicant had returned to his home and had got married there at a ceremony which 150 people attended and that there did not appear to have been any attempt to harm him on that occasion. And it noted that it was only at the Tribunal hearing that some evidence concerning threats of harm were brought up for the first time.
At [83] [CB 107] the Tribunal said:
“While some of these matters appear insignificant, the Tribunal is of the view that other inconsistencies and deficiencies in the applicant’s evidence are of import. The Tribunal finds that these indicate that the applicant was not truthful in his evidence. The Tribunal rejects the applicant’s claims. While the Tribunal accepts that the applicant may have been involved with the CYM, the Tribunal rejects that the applicant has ever been targeted because of such involvement or as a result of his work or because of his position as the local president of the CYM.
The Tribunal does not accept that the applicant initiated, or was involved in, the court case and that he gave evidence against his attackers. The Tribunal does not accept that the applicant was of an interest to the BJP, the RSS, the Hindus, or anyone else, because of his religion, his political affiliations, the court case or for any other reason…”
At [84] [CB 108] the Tribunal makes a finding relating to the possibility of relocation. It has been suggested by counsel for the Minister that this is an independent finding but to my mind the wording of the paragraph, which for over half of its form relates to the situation in Kerala and the applicant’s ability to live there, is possibly not a true independent finding of the ability to relocate. However, even if I am wrong about this it is of no importance because for the reasons given below I am of the view that the Tribunal did not fall into jurisdictional error in the manner in which it reached its decision.
On 2 March 2009 the applicant filed an application with this court. The application had four grounds for review. The first was:
“The Tribunal did not give to the applicant before the hearing the information that it had about the Kerala state and it did not give to the applicant the country information it had, the Tribunal used this information, it was against section 424A of the Migration Act.”
This ground is unsustainable given that the country information was information of the type described in s.424A(3)(a) of the Act.
The second ground is that:
“The RRT denied the applicant procedural fairness by reaching adverse conclusions that the applicant’s claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.”
The requirement for the Tribunal to provide the applicant with procedural fairness is limited by the scope of s.422B of the Act. There is no general common law rule of procedural fairness available to the applicant. In any event there is no description of what conclusions the Tribunal came to which were not obviously open on the known material. Without this particularisation it would be very difficult for a court to make a finding of jurisdictional error. In fact the Tribunal’s decision record appears to indicate that it took up with the applicant all matters of concern. And I note, also, that a s.424A letter was written before the hearing commenced. The conclusions which the Tribunal reached were open to it on the known material and this ground must fail.
The third ground was that:
“The applicant satisfies the four key elements of the convention definition. The Tribunal has not considered this aspect and therefore committed factual and legal error.”
This appears to be a direct confrontation with the Tribunal’s fact finding, it is a request for impermissible merits review.
The final ground is that:
“The Tribunal failed to consider an integer of the Applicant’s claim, in failing to consider whether or not a Christian activist (regardless of their specific claims of affiliation or past persecution) in India was at risk from harm from radical Hindus, and not able to access effective protection.”
My reading of the Tribunal’s decision record would indicate that the applicant never sought to give himself the description of a Christian activist, although possibly that could be assumed from his claimed association with the CYM. However, the Tribunal found that whilst he might have been a member of the CYM he was not the president, as he had claimed of his local branch and, thus, he could not really fall within the definition of an activist. The extract from [83] of the Tribunal decision also deals with the applicant’s fear in a general form when it says that it did not consider that he was at risk from the BJP, the RSS or the Hindus because of his religion. I do not think that there was any necessity for the Tribunal to consider this particular claim but if there was such a need I think it was fulfilled.
The applicant appeared before me today. He told me that there were cultural differences in Kerala which resulted in disputes between Hindus and Christians and Muslims. He also said that it was fear that made him tell the Tribunal different dates and have a lack of clarity and that he was unable to provide evidence to support his arguments.
At [84] [CB 110] of the Tribunal’s decision record it acknowledges tension between religious groups and that religious minorities, including Christians, sometimes experience harassment so this is not a matter which was unconsidered by the Tribunal. I note the applicant’s explanation for why he gave the Tribunal different dates but it is not for this court to interfere with that part of the Tribunal’s decision making process. The applicant promised to provide evidence to the delegate but did not do so and there was a considerable period of time thereafter in which he could have provided such evidence to the Tribunal.
In all the circumstances I am unable to find that the Tribunal made an error of law in the manner in which it reached its decision in this case. I dismiss the application. I order that the applicant shall pay the First Respondent’s costs which I assess in the sum of $5,500.00.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 8 December 2009
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