SZNNT v Minister for Immigration and Citizenship

[2009] FCA 1246

FEDERAL COURT OF AUSTRALIA

SZNNT v Minister for Immigration and Citizenship [2009] FCA 1246

SZNNT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 788 of 2009

COLLIER J
4 NOVEMBER 2009
BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 788 of 2009

BETWEEN:

SZNNT
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	4 NOVEMBER 2009
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

The application for leave to appeal be dismissed with costs fixed in the sum of $1,745.00.

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 788 OF 2009

BETWEEN:

SZNNT
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	4 NOVEMBER 2009
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against the decision of Driver FM delivered on 13 July 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 31 March 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 applicant.

2. The applicant requires leave to appeal because his Honour’s decision dismissing the judicial review application was interlocutory, followed a show cause hearing on the basis that the applicant had not raised an arguable case for relief: SZNNT v Minister for Immigration [2009] FMCA 665.

   BACKGROUND

3. The applicant is a citizen of India who arrived in Australia on 6 July 2008. On 18 August 2008 the applicant 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 5 December 2008. On 30 December 2008 the applicant applied to the Tribunal for a review of that decision.

4. The applicant claimed to have a well founded fear of persecution from Hindu extremists as a result of being involved in the Kerala Catholic Youth Movement (KCYM). He claimed that in April 2000 he informed the police about an illegal distillery of arrack run by the RSS. He claimed that the police did not take any action but instead informed the RSS of his report. He stated that, in retaliation, the RSS destroyed many houses belonging to Christians as well as killing his dog and burning his hen house. He also claimed that as a consequence he was accused of assaulting a Hindu, however he was acquitted of this charge by the Court. He stated that the RSS threatened to kill him.

5. The applicant claimed that he was also harassed and harmed by the RSS and other Hindu political groups for his conversion activities whilst he was a youth leader of the KCYM. He stated that he was involved in a motor bike accident in December 2006, when he and his brother were hit from behind by, the applicant assumed, a vehicle driven by Hindu extremists. He claimed that he was taken to hospital and was unconscious for a week, while his brother was killed. As a consequence of this accident and the ongoing threats he fled his home to Bombay and Bangalore before leaving India for Australia.

   PROCEEDINGS BEFORE THE TRIBUNAL

6. The Tribunal accepted that the applicant was a youth leader and a member of the KCYM, that he held a variety of positions with his Church and the KCYM, and that he taught classes in his Diocese. However the Tribunal found that the applicant was not a witness of truth and that he had created claims in order to obtain a protection visa. The Tribunal did not accept that the applicant was engaged in the conversion of Hindus. In making this finding the Tribunal noted that the independent information indicated that the Catholic Church or the KCYM did not run conversion classes in Kerala as claimed by the applicant. The Tribunal accepted that the applicant had been involved in an accident as claimed but found on the evidence that he was hit by an unknown vehicle, and that the police had investigated the incident. As the Tribunal had found that the applicant was not a witness of truth it rejected his claim that he was deliberately hit. The Tribunal concluded that he had not suffered harm at the hands of the RSS either because he was involved in the anti-liquor movement or because of his involvement with the Church. The Tribunal then noted the independent evidence indicated that there were incidents against Christians in Kerala. The Tribunal was satisfied, after a review of the independent evidence, that effective State protection was available in Kerala from any general risk of harm.

7. The Tribunal found that the applicant did not have well-founded fear of persecution for reason of his religion or for any other Convention reason if he returned to India.

   APPLICATION BEFORE THE FEDERAL MAGISTRATES COURT

8. On 28 April 2009 the applicant filed an application for judicial review of the Tribunal’s decision. On 25 June 2009, the applicant filed an amended application contending that:

   1.The Tribunal erred in failing to find that his claim was based on his being a Christian and a national of India.

   2.The Tribunal erred in failing to use sources, other than the Archdiocese website, in it decision.

   3.The Tribunal failed to find that he faced harm from the RSS because of his work against the illegal distillery run by the RSS.

   4.The Tribunal failed to consider his claim that he was physically assaulted on several occasions.

   5.The Tribunal erred in its use of independent country information. The Tribunal was preoccupied and did not have a fresh look at his claims.

   6.The Tribunal erred in not finding that he satisfied the definition of refugee.

9. The Federal Magistrate found that the applicant’s first ground did not disclose error as the Tribunal had clearly set its findings in relation to his nationality and his claims in its reasons. Secondly, his Honour found that the Tribunal was entitled to rely on the information it accessed from a Catholic archdiocese website in India. His Honour dismissed the third ground as an attack on the merits of the Tribunal’s reasoning, which was beyond the scope of this proceeding. Fourthly, his Honour was satisfied that the Tribunal did consider all the applicant’s claims. In relation to the applicant’s fifth ground, his Honour found that the Tribunal was entitled to refer to the country information which it did. Finally, his Honour dismissed the sixth ground as a request for an impermissible merits review of the Tribunal’s reasoning.

10. His Honour concluded that the applicant had failed to establish an arguable case of jurisdictional error by the Tribunal and ordered that the application be dismissed, pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

    APPLICATION FOR LEAVE TO APPEAL TO THIS COURT

11. On 3 August 2009 the applicant filed in this Court an application for leave to appeal from the decision of Driver FM. In support of the application for leave to appeal, the applicant filed an affidavit and a draft notice of appeal in which he claims:

    1.The Federal Magistrate failed to consider the grounds of his application. His Honour ought to have found that on the evidence before the Tribunal it was open to it to find that he was a refugee within the meaning of the Act.

    2.The Tribunal erred in finding that there was no real chance that he would be harmed if he returned to India.

12. At the hearing of the application before me the applicant spoke both with and without the aid of an interpreter. He made no written submissions, but did make oral submissions. He explained that he was a Catholic youth leader, a State secretary and a presenter for his diocese, and that he would regularly visit different places to take classes for youth. He submitted that the Hindus did not like his activities. He submitted that he has strong Christian faith and that when he gave an oath on the Bible before the Tribunal he was being completely honest.

13. I asked the applicant to explain why the decision of the Federal Magistrate warranted being overturned. The applicant said that he could have provided further information to the Tribunal but had thought he had provided “enough”. He said that he had not realised that the provision of further documentation to the Tribunal might have helped his case.

    CONSIDERATION

14. In considering whether leave to appeal should be granted, the relevant factors are:

    ·whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered; and

    ·whether substantial injustice would result if leave were refused supposing the decision to be wrong (Décor Corporation v Dart Industries Inc (1991) 33 FCR 397 at 398-399).

15. In my opinion, the approach of the Federal Magistrate and his Honour’s conclusion are not attended by sufficient doubt to warrant reconsideration.

16. The Tribunal clearly accepted a considerable amount of information tendered by the applicant, including much of the information put to me at the hearing of the application, however the Tribunal did not accept that the applicant was likely to be harmed by the RSS group as he claimed. Rather, the Tribunal was satisfied from the independent information that Christians were able to worship freely in Kerala and received the protection of the Kerala authorities, and that the applicant would not be denied state protection in India.

17. Before the Federal Magistrate the applicant asserted a denial of procedural fairness in the conduct of the Tribunal hearing because the Tribunal did not give him more time to submit more material. This is similar to the issue raised before me by the applicant. His Honour concluded that the Tribunal did not deny the applicant procedural fairness. No submissions have been put to me which support a finding that his Honour erred in this conclusion. I note further that it is for an applicant before the Tribunal to make a case for the Tribunal which satisfies the Tribunal of the applicant’s refugee status – the Tribunal is under no obligation to make the case for the applicant (Abebe v The Commonwealth (1999) 197 CLR 510 at 576). In this case clearly the Tribunal was not satisfied.

18. In relation to the applicant’s grounds before me, the first ground is vague and unparticularised. In any event, the applicant’s claim that the Federal Magistrate failed to consider the grounds of the application cannot be substantiated in light of his Honour’s detailed consideration of the applicant’s claims in that Court.

19. Further, to the extent that the applicant’s second ground takes issue with the factual findings of the Tribunal it cannot be substantiated because his Honour was not empowered to undertake a merits review of the Tribunal’s decision. The only basis upon which an appeal lies from a privative clause decision within the meaning of s 474 is on the basis of jurisdictional error of the Tribunal: S157/2002 v Commonwealth (2003) 211 CLR 476.

20. It follows that the application for leave to appeal should be dismissed with costs fixed in the sum of $1,745.00.

I certify that the preceding twenty (20) 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 Applicant:	The Applicant appeared in person
Solicitor for the First and Second Respondents:	Ms J Dinihan of Clayton Utz

Date of Hearing:	3 November 2009
Date of Judgment:	4 November 2009