SZNNT v Minister for Immigration

[2009] FMCA 665

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNNT v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 665

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)

Applicant: SZNNT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1010 of 2009

Judgment of: Driver FM

Hearing date: 13 July 2009

Delivered at: Sydney

Delivered on: 13 July 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms J Dinihan
Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1010 of 2009

SZNNT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 31 March 2009.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from India and made claims of religious persecution.  He arrived in Australia on 6 July 2008 apparently for the purpose of attending World Youth Day activities and sought a protection visa from the Minister's Department on 18 August 2008.  The Minister's delegate rejected that application on 5 December 2008.  The applicant sought review by the Tribunal on 30 December 2008.  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing.  The hearing was conducted on 5 March 2009 with the assistance of a Malayalam interpreter.

3. The Tribunal raised with the applicant detailed questions concerning his claims.  Those claims were that the applicant suffered harm or the threat of harm from Hindu extremists as a result of being involved in the Catholic Youth Movement in Kerala State.  The applicant claimed to have had a false case brought against him and to have had threats and an attempt on his life made when he was acquitted in that case.  The applicant's problems allegedly came from the RSS as a result of the applicant's efforts to convert Hindus to Christianity and for his anti‑liquor activities.  The Tribunal accepted the basic facts concerning the applicant's religious faith and his involvement in the Catholic Youth Movement.  The Tribunal accepted that the applicant was a youth leader.  However, the Tribunal did not accept that the applicant was engaged in the conversion of Hindus and did not accept the harm he asserted he had suffered at the hands of the RSS.  The Tribunal noted that there were incidents against Christians in Kerala but found that effective State protection was available in Kerala from any general risk of harm.

4. These proceedings began with a show cause application filed on 28 April 2009.  The applicant now relies upon an amended application filed on 25 June 2009.  There are six grounds in that application which I incorporate in this judgment:

   1. The Tribunal finding that The [Applicant’s] Refugee claim is because of his Nationality CB154/77,

   The Tribunal failed to find out that The [Applicant’s] claim is because he is a Christian and a Nationality of India, this is a serious Jurisdictional error made by the Tribunal.

   2.    The Tribunal did not [use] any other source to find that the serious harm the Applicant had faced in India other than the Archdiocese website

   3.The Tribunal Accepted that The Applicant was a Secretary of KCYM, and also accepted that the KCYM Involved in spiritual and liturgical activities such as teaching catechism, church choir, Christmas celebrations, house visits, church cleaning, blood donation, awareness campaigns against “Social evils” helping the sick and needy etc, CB155/82.  The Tribunal failed to find that as a Secretary of KCYM, working against the Social evils, e.g., the Illegal Liquor Mafia running by The RSS, and the threat from RSS

   4. The Applicant have given adequate evidence to the Tribunal that he was Physically assaulted on several occasion, but the [T]ribunal member failed to consider his genuine claim,

   5.The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against the case in the final outcome, The Tribunal used all information for matter of reasoning and evaluation of applicant’s case for the protection visa, The Tribunal was pre occupied and did not have a fresh look.  The Tribunal failed to consider the country information in proper way

   6. The Refugee Review Tribunal failed to act that the [applicant] satisfy the definition of “Refugee” as defined in [A]rticle 1A(2) of the [C]onvention.  To go further the Tribunal failed to see that the [applicant] satisfy, the four key elements that are required to satisfy the [C]onvention definition.  The applicant state that the Tribunal refers to four key elements and since they satisfy them they are entitled to protection visa

5. The applicant continues to rely upon his affidavit filed with his original application.  I received that affidavit.  I also received the court book filed on 28 May 2009.

6. The first ground in the application appears to assert error in the Tribunal's finding as to the basis of his claims.  However, the Tribunal clearly set out its findings in relation to his nationality and his claims in its reasons at paragraphs 77 and 78 (court book, page 154).  No arguable case of error is disclosed.

7. Ground 2 of the application finds fault in the use made by the Tribunal of a Catholic archdiocese website in India.  At paragraph 82 of its reasons (court book, page 155) the Tribunal records that the applicant was questioned about that matter.  The Tribunal drew attention to the fact that the church web site did not support his claims.  The applicant asserted then and continues to assert now that the website is not a reliable indication of the conversion activities undertaken by the church.  There may be substance to that assertion but the Tribunal was entitled to rely upon the information it accessed.  The Tribunal also had regard to a range of other country information as disclosed in its reasons from page 147 to 154 of the court book.  I see no arguable case of jurisdictional error arising from ground 2.

8. Ground 3 appears to assert that because the Tribunal accepted some of the factual bases of the applicant's claims, the Tribunal should have accepted his claims of past harm.  That, however, is an attack on the merits of the Tribunal's reasoning.  That is beyond the scope of this proceeding.

9. Ground 4 asserts a failure to consider an element of the applicant's claims.  However, the Tribunal's reasons disclose (court book, page 157) that the applicant's claim was considered.  However, the Tribunal, while finding that the applicant had been injured on one occasion, did not accept a religious motivation for the accident.

10. Ground 5 is an assertion in template form asserting fault in the Tribunal's use of country information.  No arguable case of jurisdictional error arises from that ground in relation to the Tribunal's use of country information.  The Tribunal was entitled to have regard to the information it saw as of assistance in dealing with the applicant's claims.

11. Ground 6 is an attack on the ultimate finding of the Tribunal.  Again, it does not rise above an attack on the merits of the Tribunal's reasoning.  No arguable case of jurisdictional error is disclosed from that ground.

12. In his oral submissions, the applicant asserted a denial of procedural fairness in the conduct of the Tribunal hearing.  He asserted that the hearing opportunity was unfair because the Tribunal did not give him more time to submit more material.  He claims that he has more material available that should have persuaded the Tribunal.  He claims that the Tribunal hearing ended abruptly without an invitation to submit more material.  He also asserts that at the hearing the Tribunal demonstrated pre-judgement.  The only evidence available to me of what occurred at the Tribunal hearing is what the Tribunal sets out in its reasons.  Those reasons do not indicate pre-judgement.  At paragraph 55 of its reasons (court book, page 147) the Tribunal records that at the conclusion of the hearing the presiding member asked the applicant if he had anything further.  He said that he could get more photos but thought that this was enough.  He repeated his claim in relation to the threats of harm against him.  The applicant disputes the accuracy of what is said at paragraph 55 but he has not taken up the opportunity afforded to him to submit a transcript of the Tribunal hearing.  Further, one of his statements from the bar table suggests that paragraph 55 is accurate.  He told me that he thought he had submitted to the Tribunal sufficient information.  He was evidently surprised that the Tribunal did not find that information persuasive. 

13. I conclude that the applicant has failed to establish any arguable case of jurisdictional error by the Tribunal. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

14. Costs should follow the event in this case. The Minister seeks party‑party costs of $3,300 but reduced that claim to the scale amount of $2,935. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  16 July 2009