SZNIF v Minister for Immigration and Citizenship
[2009] FCA 1256
•4 NOVEMBER 2009
FEDERAL COURT OF AUSTRALIA
SZNIF v Minister for Immigration and Citizenship [2009] FCA 1256
SZNIF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 791 of 2009COLLIER J
4 NOVEMBER 2009
BRISBANE (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
NSD 791 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNIF
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
4 NOVEMBER 2009
WHERE MADE:
BRISBANE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
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
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
NSD 791 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNIF
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE:
4 NOVEMBER 2009
PLACE:
BRISBANE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
This is an appeal against the decision of Barnes FM delivered on 16 July 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 13 February 2009. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.
BACKGROUND
The appellant is a citizen of India who arrived in Australia on 9 July 2008. On 25 August 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 4 November 2008. On 2 December 2008 the appellant applied to the Tribunal for a review of that decision.
The appellant claimed to have a well-founded fear of persecution due to his Christian faith. He claimed that in India he faced serious harm from Muslims, Muslim fishermen and the Indian police. 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 claimed that Christian fishermen were targeted by Muslim fishermen and that many were forced to leave the area. He claimed that when the matter was reported to the authorities he was detained and he was accused of attacking Muslim fisherman. He claimed that the dispute was resolved when he paid a fine to the police.
He claimed that tensions between Muslims and Christians remained and that in December 2007 Christians were attacked by RSS supporters and Muslims after they were accused of converting Hindus and Muslims to Christianity. He claimed that a mob came for him and demanded that he surrender to the police or be killed. He claimed that he reported the matter to the police who falsely accused him of killing or being implicated in the murder of a Muslim fisherman. He claimed that the police told him that they had received orders from higher authorities to make a false case against him and that they were not able to protect him from the Muslims. He stated that they told him to leave India for good to escape the charges. The appellant stated that after he was released he went to Tamil Nadu and then Andhra Pradesh before leaving India for Australia.
PROCEEDINGS BEFORE THE TRIBUNAL
The Tribunal found that the appellant’s claims were not credible. The Tribunal was not satisfied that, after considering independent country information, his claims that Christians, and specifically Christian fishermen in Kerala, were being targeted by other religious groups or the authorities were credible. The Tribunal found that the appellant had fabricated his claim in order to enhance his protection visa application.
The Tribunal did, however, accept that the appellant 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. After considering information from external sources, the Tribunal formed the view that the State in India provided a reasonable level of protection for its citizens and that the appellant would have the opportunity to defend himself in India in relation to the crimes he had allegedly committed. The Tribunal 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 appellant'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 appellant's claim that the authorities in Kerala colluded with the Muslim community to target Christians and it did not accept as credible the appellant's claim that this had occurred in his case. It formed the view that the appellant was accused of having committed crimes because the authorities believed that he had committed the crimes.
On the basis of these findings the Tribunal 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.
APPLICATION BEFORE THE FEDERAL MAGISTRATES COURT
On 11 March 2009 the appellant filed an application for judicial review of the Tribunal’s decision. The grounds of the application were: jurisdictional error, breach of procedural fairness; and breach of natural justice.
The Federal Magistrate found that the general grounds relied on by the appellant were unparticularised and as such did not establish any jurisdictional error. Her Honour noted that the appellant took issue with the Tribunal’s findings, particularly in relation to his credibility. Her Honour stated that credibility findings, as well as the use of independent country information, were matters for the Tribunal and that a merits review was not available to the appellant. Her Honour was satisfied that the Tribunal had properly explored the appellant’s claims and raised the dispositive issues with him at the hearing. Her Honour found no error in the Tribunal's assessment of his claims.
As no jurisdictional error had been established, her Honour dismissed the application.
APPEAL TO THIS COURT
By Notice of Appeal filed on 4 August 2009, the appellant raised the following grounds of appeal against the decision of Barnes FM:
(a) [t]he honourable FM failed to consider the grounds of my application such as error of law made by the Tribunal. The Court below erred in that it ought to have found that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the Act.
(b) [the] Tribunal was unsatisfied that there is a real chance that I would suffer harm amounting to persecution if I return to India. This is a serious jurisdictional error made by the Tribunal.
At the hearing of the appeal before me the appellant wished to put further factual information in the form of newspaper cuttings before the Court relevant to his personal circumstances. I explained to the appellant that this Court is not empowered to conduct a merits review of the decision of the Tribunal. The appellant had nothing further to add.
CONSIDERATION
The grounds of appeal before the Court are, unfortunately, vague and unparticularised. Indeed, they simply invite this Court to revisit the Tribunal’s findings. They do not identify any jurisdictional error in the decision of the Tribunal or appealable error in the decision of the Federal Magistrate. The Federal Magistrate found that the Tribunal gave the appellant a fair hearing, and that the findings of the Tribunal were open on the evidence before it. There is no material before the Court to warrant the disturbance of the decision below.
The appeal is dismissed with costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 4 November 2009
Solicitor for the Appellant: The Appellant appeared in person Solicitor for the First and Second Respondents: Mr R Baird of Clayton Utz
Date of Hearing: 4 November 2009 Date of Judgment: 4 November 2009
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