SZNIE v Minister for Immigration - [2009] FMCA 866

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNIE v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 866

MIGRATION – Review of decision of RRT – where applicant cannot particularise grounds of jurisdictional error and seeks merits review.

Applicant:

SZNIE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 580 of 2009

Judgment of:

Raphael FM

Hearing date:

20 August 2009

Date of last submission:

20 August 2009

Delivered at:

Sydney

Delivered on:

20 August 2009

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr Y Shariff

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed the sum of 4,350.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 580 of 2009

SZNIE

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 9 July 2008 as part of a delegation for World Youth Day. On 21 August 2008 he applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. He attended an interview with a delegate of the Minister who, on 19 November 2008, declined to grant a protection visa. On 4 December 2008 the applicant applied for a review of that decision from the Refugee Review Tribunal. He attended a hearing before the Tribunal. On 11 February 2008 the Tribunal determined to affirm the decision and handed it down on 12 February 2008.
The factual background to the applicant’s claim to be a person to whom Australia owed protection obligations was that he was a resident of the Indian state of Kerala, where he lived near Trivandrum. He was a Christian. He had received an education up to tertiary level and after some time assisting his parents in their business, he had managed to find a position working in computers in Trivandrum.
In February 2008, whilst travelling to Trivandrum with his sister, a group of Muslim goondas boarded the bus and demanded that Christians identify themselves. Although he did not respond, both he and his sister were attacked. The bus driver took the bus to a police station in a Muslim part of town. The police arrested five Muslim troublemakers as well as the applicant and his sister, but the applicant and his sister were later released. The applicant claimed that a week later he saw the same group of men following him.
The applicant told that in March 2008 he was abducted by the same group of Muslim troublemakers and taken to a hospital in the nearby Tamil Nadu state, approximately 100 kilometres from Trivandrum. A female Muslim doctor took blood from him for the purposes of checking his blood group and he was told that his kidneys would be removed and he would be killed and cremated. The applicant managed to escape with the assistance of an employee at the hospital. He did not tell the police about this incident because he was afraid. He said that his brother and the local priest helped him to leave the country by finding him a place with a group that was visiting Australia for World Youth Day.
He told that he was on the police wanted list but was still able to leave the country without difficulty. The applicant claimed that if he returned to India he would be harassed by Hindu extremists, such as the BJP and the RSS, because he is a Christian. He said he was still afraid of the Muslims and particularly the people who had kidnapped him. The applicant provided the Tribunal with independent country information concerning the persecution of Christians.
The Tribunal questioned the applicant in some detail and referred him to its own independent country information and communicated that whilst there were reports of anti-Christian activity in Kerala, in general the situation was safe and in fact the authorities made a point of protecting Christians. The Tribunal also pointed out to the applicant that police appear to have protected him in relation to the first incident and it did not understand why he did not think they would protect him in respect to the second.
The Tribunal noted that although the sale of body parts was a problem in India, there was no evidence that people were being kidnapped and murdered for their body parts, as claimed.
“[57] The applicant claims that as a Christian he is at risk of harm by Muslims, Muslim criminals, the authorities, the communist government, and Hindu extremists such as the BJP and the RSS. The Tribunal has accepted that the applicant is a Christian. However, after considering information from external sources relating to the circumstances of Christians in India, and in particular the circumstances of Catholics in Kerala, the Tribunal finds that the applicant’s fear is not well-founded. The Tribunal is satisfied by the above information, that the applicant can freely and safely practise his religion in Kerala without adverse interest from any of the individuals or groups he fears. The Tribunal accepts that communal violence between religious groups does occur in India. However, the Tribunal is satisfied by information from external sources that the authorities in Kerala provide a reasonable level of protection at times of communal violence. The Tribunal does not accept that the applicant is at risk of serious harm by Muslims, Muslim criminals, the authorities, the Kerala communist government, or Hindu extremists in India, which gives rise to a well-founded fear of persecution for a Convention reason.”
On 11 March 2009 the applicant filed an application with this court seeking a review of the decision of the Tribunal. He said that the grounds of his application were:
“(1)     Jurisdictional error
(2)    Breach of procedural fairness
(3)    Breach of natural justice.”
Although ordered to provide an Amended Application at the directions hearing the applicant did not do so and therefore these claims have not been particularised. What the applicant did do was to file, on 24 April 2009, an affidavit in which he provided, what was headed “Explanation about the Tribunal Decision”. Annexed to that application was a bundle of documents dealing with matters that the applicant had raised, in particular the situation for Christians in Kerala and in India generally, and the situation with regard to the trade in body parts.
I explained to the applicant during the course of this hearing that whilst I had considered this document it appeared to me to be no more than a further argument of the merits of his case and that this court was not permitted to indulge in further merits review.
In his oral submissions to me the applicant also referred to matters which went to the merits of his case. He made several claims that the Tribunal had misunderstood his evidence but what he was really saying was that the misunderstanding by the Tribunal was in it not accepting that evidence, or rather, not accepting the seriousness of it, because, in fact, the Tribunal did not find that the applicant was not a credible witness. The Tribunal’s grounds for upholding the decision of the delegate were that in regard to the claims concerning the kidnapping and sale of body parts the applicant could expect to receive adequate state protection. And in regard to the general claims of persecution upon the ground of religion that independent country information would seem to indicate that this was not the serious problem that the applicant had submitted and that in any event, once again, there would be adequate state protection from it.
I explained the nature of a judicial review to the applicant as best I could, it being a complex area of jurisdiction. The applicant was unable to particularise the alleged jurisdictional error, breach of procedural fairness or breach of natural justice that he had complained of.
Having read the Tribunal decision in the green book, I am satisfied that the decision the Tribunal came to was one that was open on the evidence including the independent country information provided and discussed with the applicant and that no jurisdictional error of the type suggested by the applicant could be found. In the circumstances I dismiss the application. I order that the applicant pay the first respondent’s costs which are assessed in the sum of $4,350.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 8 September 2009