SZNIF v Minister for Immigration - [2009] FMCA 707

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNIF v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 707

MIGRATION – Application to review decision of Migration Review Tribunal – no jurisdictional error – application dismissed.

QAAT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 299
SZIJG v Minister for Immigration and Citizenship [2007] FCA 1652

Applicant:

SZNIF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 581 of 2009

Judgment of:

Barnes FM

Hearing date:

16 July 2009

Delivered at:

Sydney

Delivered on:

16 July 2009

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 581 of 2009

SZNIF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 13 February 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia in July 2008 and applied for a protection visa in August 2008. In a statement accompanying his protection visa application he attached and described extracts from country information said to relate to the persecution of Christians in India and Kerala and summarised his claims to fear persecution on that basis, in particular from Muslims. He claimed that he left India understanding that Muslims had threatened to kill him unless he left the country and that a fabricated case would be filed against him if he did not leave. He claimed that he understood that they were still searching for him. He made use of the opportunity to attend the World Youth Conference to travel to Australia.
The applicant was invited to and attended a Departmental interview. A delegate of the first respondent refused the protection visa application. The applicant sought review by the Tribunal. He attended a Tribunal hearing and provided the Tribunal with two supporting documents, consisting of a copy of a warrant of arrest dated 22 April 2008 and a document headed “Certificate” dated 25 September 2008 said to relate to his wife and child.
The applicant's claims as presented to the Department and the Tribunal were in essence that as a Catholic who had lived most of his life in Kerala he feared harm from Muslims, Muslim fishermen and the Indian police, in particular because he had been falsely accused of killing or being implicated in the killing of a Muslim fisherman in August 2007. He complained that in the past, during riots between Christian and Hindus, Hindu national extremists had entered the house and beaten members of his family and that his sister had died and that although he reported the crime to the police they refused to investigate. He also made claims in relation to difficulties he claimed he had experienced from Muslims and Muslim fisherman in relation to his activities in Kerala.
In particular, the applicant claimed that while conducting a religious studies class at a local church, a mob came for him and demanded that he surrender to the police or be killed. He claimed that when he went to the police station he was accused of exposing police corruption and specifically of being implicated in the murder of Muslim fishermen. He claimed generally that Christians, and Christian fishermen in particular, were targeted by Muslims, Muslim fishermen and Muslim criminals in Kerala with the assistance and consent of the government.
In its reasons for decision the Tribunal set out a detailed account of what occurred at the Tribunal hearing. That is the only evidence before the Court of the conduct of the Tribunal hearing. It is apparent from the Tribunal account of the hearing that it raised with the applicant its concerns in a number of respects, including in relation to the fact that the warrant for the applicant's arrest was issued before he had departed India, although the applicant claimed that he did not know it existed and only became aware of it when his wife sent him a copy. The Tribunal also raised concerns that the certificate about the applicant’s wife and child indicated only that they were being treated for a condition described as “aphigatham” and that the nature and cause of this ailment was not apparent from the document. It recorded the applicant's responses to these concerns.
The Tribunal recorded at length that it put a number of items of independent country information and what seemed to be apparent from that information to the applicant for comment, including putting to him for comment that the reports referred to did not support his claim that Christians in Kerala were targeted by Muslims or that the State government was in any way colluding with Muslims to target Christians. It recorded his response in disagreement with this conclusion.
The Tribunal also put to the applicant for comment that it appeared from the document he had provided that he had been implicated in an incident in August 2007 which led the authorities to accuse him of killing a Muslim fisherman and that it appeared he had fled the State and the country to avoid the charges, to which the applicant responded that he had not committed any crimes in India.
In its findings and reasons the Tribunal accepted that the applicant was a citizen of India and that he had been issued with an arrest warrant consistent with the document that he provided to the Tribunal. However it found that his claims that Christians in Kerala, and specifically Christians and fishermen in Kerala, were being targeted by Muslim fishermen and criminals with the aid and consent of the government of Kerala, were not credible. It was not satisfied the applicant had provided a credible account of his claims and circumstances and after considering country information discussed with the applicant during the hearing was not satisfied that these claims were credible. It formed the view that Christians in Kerala were not targeted by other religious groups or the authorities. In particular, the Tribunal did not accept as credible the applicant's claims that Muslims or Muslim fishermen were targeting Christians or Christian fishermen or that the current government of Kerala was implicated in targeting or consenting to the targeting of Christians. It found that the applicant fabricated these claims to enhance his protection visa application and did not accept as credible his claim that he was at risk of serious harm from Muslims, Muslim fishermen, Muslim criminals, or the authorities, because he was a Christian or a Christian fisherman.
The Tribunal did, however, accept that the applicant was implicated in an incident which led to murder charges being laid against him. It accepted that he may be detained if he returned to Kerala and may be forced to defend himself for crimes he was accused of having committed. It referred to his claim that he would not be able to defend himself as he lacked the financial resources, that Muslims had more financial resources and that he had been falsely accused. However it formed the view, after considering information from external sources, that the State in India provided a reasonable level of protection for its citizens. It found that the applicant would have the opportunity to defend himself in India in relation to the crimes he had allegedly committed and was satisfied that Muslim influence or government bias would not prevent him from accessing a reasonable level of protection in Kerala or that he would be denied the opportunity by Muslims, their associates, or the government to defend himself.
The Tribunal addressed the applicant's claims that the charges against him were fabricated by the authorities and Muslims, but found that the authorities had issued a warrant for his arrest as part of their legitimate law enforcement responsibilities. It found that information from external sources did not support the applicant's claim that the authorities in Kerala colluded with the Muslim community to target Christians and it did not accept as credible the applicant's claim that this had occurred to him. It formed the view that the applicant was accused of having committed crimes because the authorities believed that this was the case and had issued the warrant while exercising a legitimate authority to investigate a crime.
On the basis of these findings the Tribunal was not satisfied that the essential or significant reason for action against the applicant by the authorities, Muslims, Muslim fishermen or Muslim criminals, related to his Christianity, or his work as a fisherman, or because he was a Christian fisherman, or for any other reason which could reasonably be linked to one of the Convention grounds. It found he was accused of having committed a crime because he was suspected of having done so and that his difficulties related to prosecution by the State against a person so suspected. It was not satisfied that he faced a real chance of serious harm in India by Muslims or the authorities such as to give rise to persecution for a Convention ground. The Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant sought review by application filed in this Court on 11 March 2009. The application contains three generally expressed and unparticularised grounds of jurisdictional error, breach of procedural fairness and breach of natural justice. When given an opportunity to elaborate on these claims in the hearing today, the applicant made claims about the situation in India and his fear of persecution from Muslims. However, as I endeavoured to explain to the applicant, such claims seek merits review and merits review is not available in this Court. Insofar as he took issue with the Tribunal's conclusions in relation to his credibility, credibility is a matter for the Tribunal and it has not been established that the Tribunal's findings were not open to it on the material before it for the reasons which it gave.
The applicant filed what was described as an affidavit on 29 April 2009 to which was attached a document described “Explanation about the RRT decision”. For the most part that document set out the applicant's claims about what occurred in India and the situation in relation to Christians in Kerala as the applicant saw it and took issue with the fact that the Tribunal had not reached conclusions consistent with the applicant's view of the situation in India in relation to his claimed fears and whether State protection was available. However such material, which was taken to be a submission from the applicant, does not establish jurisdictional error, but rather that the applicant disagreed with the factual findings and conclusions of the Tribunal.
This is not a rehearing and the fact that the applicant told the Court that he was not in a position to put a considerable amount of documentary material before the Tribunal that he now wishes to rely upon is not such as to establish that the Tribunal made a jurisdictional error on the material before it at the time of its decision.
Insofar as the applicant raised the issue of country information, he did provide a number of items of country information in connection with his protection visa application. However, as is apparent from the Tribunal reasons for decision, it put to him a number of items of independent country information from a variety of sources which, as set out above, formed the basis for its conclusions. It is well established that the weight to be given to various items of country information and whether country information should be accepted as accurate is a matter for the Tribunal (see QAAT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 299) and that the choice and interpretation of country information is a factual matter for the Tribunal (see SZIJG v Minister for Immigration and Citizenship [2007] FCA 1652).
Insofar as the applicant sought to suggest that circumstances had worsened in India since the time of the Tribunal decision, such claims do not establish jurisdictional error on the part of the Tribunal on the material before it at the time of its decision.
The applicant claimed generally that he did not give all the evidence to the Tribunal because he did not have assistance at the time of the Tribunal hearing. However, again, that does not establish jurisdictional error on the part of the Tribunal. Indeed, it appears from the Tribunal reasons for decision that during the hearing the Tribunal put to the applicant its concerns in various respects, in particular the manner in which those concerns were based on country information and the view that the Tribunal might form based on particular aspects of those items of country information.
The applicant also took issue with the fact that the Tribunal did not believe what he said, even though he had provided it with an arrest warrant and a document in relation to his wife and children. In relation to the arrest warrant, the Tribunal did in fact accept on the basis of this document that an arrest warrant had been issued as claimed by the applicant and, indeed, that he had been accused of involvement in a serious crime. However the Tribunal rejected the claim that it followed that this had occurred for a Convention reason or that the applicant would be prevented from accessing a reasonable level of protection or be denied the opportunity by Muslims, their associates, or the government from defending himself. It was not satisfied that the essential or significant reason for action taken against the applicant was a Convention reason. No error is apparent in the Tribunal's approach in that respect.
In relation to the documents submitted by the applicant relating to his wife and child, it is apparent from the Tribunal reasons that the applicant explained that this was a document from a doctor practising traditional Indian medicine and that while he claimed it was to prove Muslims had entered his house and attacked his family, as the Tribunal pointed out to him, the certificate only indicated that the wife and daughter were receiving treatment from a traditional Indian doctor and the nature or cause of their medical condition was not apparent from the document. The Tribunal also raised with the applicant the fact that the document suggested that there had been treatment from 16 August 2008 after the applicant had left India.
In its findings and reasons the Tribunal referred to the fact that the applicant claimed that in August 2008 his wife and child were assaulted by Muslims in his village, seeking to harm him. However, as set out above, the Tribunal was not satisfied that the applicant's claims were credible. In particular it did not accept that Christians in Kerala were targeted by other religious groups or the authorities as claimed. It was not necessary for it to refer specifically in the findings and reasons to the document provided in relation to the applicant's wife and child, given its conclusions at a higher level of generality in relation to the basis for the applicant's claimed fear of persecution.
The applicant tendered two pages (one of which is numbered one and one of which is numbered five) which appear to be pages from a decision or decisions of a delegate of the first respondent in relation to a protection visa application. The first of these relates to another person and appears to be the first page of a decision record. The second page is numbered "5" and is the same as the fifth page of the decision record in relation to the applicant and indeed, bears his name, passport number and date of birth. I asked the applicant what he intended to assert in reliance on these documents. It appeared that his complaint was that he had been given this document, or perhaps told by the person named on the first page of the protection visa decision record, that his documents had come into the possession of another person. He expressed concern about the confidentiality of his documents and identity.
There was no other evidence before the Court in relation to this issue. I explained to the applicant that the concerns that he raised, while understandable, were not concerns that indicated any jurisdictional error on the part of the Tribunal and that if he did have a concern about a breach of his confidentiality this was a matter to be raised with the Minister for Immigration. These documents do not establish any jurisdictional error on the part of the Tribunal and there is no indication in the material before the Court that there has been any confusion as to the identity of the applicant or any documentary confusion in the material before the Tribunal.
The general grounds relied on by the applicant in the application for review are unparticularised and are not such as to establish any jurisdictional error. As set out above, the Tribunal's account of the hearing discloses that it explored the applicant's claims with him, sought his views in relation to the independent country information before it on which it relied and invited him to comment on its concerns with his evidence. In raising these matters the Tribunal raised dispositive issues with the applicant and having provided him with an opportunity to address such issues, no error is demonstrated in the Tribunal's assessment of his claims. Its findings were open to it on the material before it. As no jurisdictional error has been established, the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and the Minister seeks costs in the sum of $3,800. The applicant indicated that he could not pay all of this at once, but could do so in instalments. That is a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: