SZOAT v Minister for Immigration

[2010] FMCA 358

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOAT v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 358

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

Migration Act 1958 (Cth), ss.422B, 425

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1

Applicant: SZOAT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2848 of 2009

Judgment of: Barnes FM

Hearing date: 12 May 2010

Delivered at: Sydney

Delivered on: 12 May 2010

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2848 of 2009

SZOAT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 29 October 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 April 2009 and applied for a protection visa in that month. 

2. In connection with his protection visa application the applicant claimed to fear persecution and that he would be killed by RSS and Hindu extremists if he remained in India because he was a Christian who had participated in church activities and had assisted the Scheduled Castes.  He claimed that he had been attacked, seriously injured and hospitalised, that he had reported these incidents to the authorities and that he believed he would be killed if he returned to India. 

3. The applicant elaborated on his claims in a letter to the Department dated 25 May 2009.  He also provided country information.  In a Departmental interview the applicant was asked about his personal circumstances and his claimed involvement with the church.  He was recorded as having claimed, among other things, that he had attended a particular church in India “three times a day for all of his life”, that he had preached to the Dalits and Scheduled Castes for some 20 years and that he had been under threat and attack for the last two years.  He gave details of claimed attacks in July and October 2008.  He claimed that in the October 2008 attack his home was “destroyed” and his family attacked.  He claimed his children were hit and his wife had her leg broken.  However he did not report this attack to the police because “it was not the Christian thing to do”.  He also claimed that he moved from his home area for a period of time, but that he could not safely relocate elsewhere in India as “the RSS would find him wherever he went”.  He claimed “he was told he would be killed if he did not stop preaching”. 

4. The application was refused on 20 July 2009.  The applicant sought review by the Tribunal.  He attended a Tribunal hearing.  The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision. 

5. In its findings and reasons the Tribunal summarised the applicant’s claims as elaborated on at the hearing that he would be killed by RSS and Hindu extremists because he was a Christian and had been taking care of the Scheduled Castes; that he had been involved in church activities and that a number of people had decided to convert to Christianity because of his preaching.  It recorded that he claimed that as a consequence the RSS and Hindu extremists had placed him on a “hit list” and warned him to stop his work or he would be killed.  He claimed that he had “continued working and preaching the word to the Scheduled Castes”.  He claimed that he had been physically tortured and his family mentally tortured, but that when he decided to move elsewhere “these associations followed him”. 

6. The Tribunal found that the applicant’s claims about being a Christian in his protection visa application and at the Departmental interview were “vague, sometimes contradictory, and reveal[ed] no knowledge of the Christian faith”.  It explained that for this reason it had “tried to explore the applicant’s claims at the hearing and to provide him with an opportunity to…speak about his faith” and what it meant to him and to “give him an opportunity to reveal some knowledge and commitment to it”.  The Tribunal found however that the applicant was “not able to reveal any real knowledge of the Bible or the Christian faith”.  It gave the example that “while the applicant was aware of the Last Supper, and some of Jesus’ miracles, in extremely vague and general terms, he [had] revealed virtually no other knowledge of the Bible and the Christian message”.  The Tribunal found this was “totally inconsistent with [the applicant’s] claim” to have been a Christian since birth and that his family in India were Christians.

7. The Tribunal also had regard to the fact that the applicant did not claim that he had been attending church or participating in Christian or religious activities since his arrival in Australia over seven months earlier and the fact that he had provided “no evidence to support his claims that he is a Christian or was a Christian in India” such as a letter from his parish priest, a congregation member or his family, despite his claims to have been a Christian from birth who had attended a particular church “three times a day all his life”.  From the applicant’s extremely limited knowledge of the Bible and the Christian faith the Tribunal did not accept that the applicant had in fact attended a particular church three times a day all his life.  It found that he had “embellished his claims in order to enhance his claim for a protection visa” and that he was “not a credible witness”. 

8. In making this finding the Tribunal acknowledged that a person’s faith was a personal matter, that different people have different levels of knowledge, interpretation and understanding about what their faith means to them and that it was “not necessary for a person to have a deep and profound level of theological knowledge and expertise…to believe in Christianity or to be subject to persecution as a Christian”.  The Tribunal also indicated that it was not trying to “rate” the applicant’s knowledge of his faith and the Bible by the hearing questions and responses.  However it found that it would reasonably expect the applicant to talk, “even in simple terms” about his faith and to “outline on what it was based if this was important to him, and was the reason why he was persecuted in India”, especially as the Tribunal had advised him in the hearing invitation letter that it was unable to make a favourable decision on the information he had provided. 

9. The Tribunal found that the applicant did “not have the necessary basic knowledge, conviction, understanding or awareness one would reasonably expect for a person who even loosely [held] the Christian faith and ha[d] been a Christian since birth and ha[d] been spreading the word amongst the Scheduled Castes as he claim[ed]”. 

10. The Tribunal found that it was not able to satisfy itself that the applicant was a Christian in India.  It did not accept this claim or the consequential claims that the applicant had worked with the Scheduled Castes and tried to convert them to Christianity.  The Tribunal also had regard to the lack of any evidence (such as a medical record showing physical mistreatment or any supporting documentation from his family, friends or the parish priest) to support the applicant’s claims that he had been attacked by RSS or Hindu extremists in India as claimed. 

11. The Tribunal did not accept the applicant’s claims he was a Christian in India who had been attacked by the RSS or Hindu extremists or the other claims that flowed from these claims.  It was satisfied that the applicant did not have a well-founded fear of harm amounting to persecution for a Convention reason.  The Tribunal affirmed the decision not to grant the applicant a protection visa. 

12. The applicant sought review by application in this court on 23 November 2009.  He filed an amended application on 25 January 2010 and seeks to rely on both applications.  He filed an affidavit on 25 January 2010 which reiterated the grounds in the original application but did not elaborate on them.

13. The first ground in the original application is simply:

    The Decision made by RRT is Jurisdictional Error

14. This assertion is repeated in the affidavit, but no particulars are provided.  The mere assertion of unparticularised error does not establish jurisdictional error. 

15. Similarly, the second ground of “Breach of Natural Justice” is unparticularised. In the affidavit it was claimed, without elaboration, that there was a breach of procedural fairness. This claim was not elaborated on in the affidavit or application. I note the operation of s.422B of the Migration Act 1958 (Cth). There is nothing in the material before the court to indicate any failure by the Tribunal to comply with its obligations under Division 4 of Part 7 of the Act.

16. In oral submissions the applicant raised one matter which might be seen as intended to raise an issue of procedural fairness.  He claimed that he had asked the Tribunal for extra time to obtain other evidence from India, but that the Tribunal had denied him the extra time.

17. There is no evidence before the court to support such an assertion.  First, there is no evidence of any written request to the Tribunal from the applicant for extra time to provide documents.  I note that there was a period of some six months or thereabouts between the time of his protection visa application in April 2009 and the Tribunal decision in October 2009.  After the applicant lodged his application to the Tribunal, the Tribunal wrote to him on 6 August 2009 advising him to provide any further material or written arguments as soon as possible.  It reiterated this in a hearing invitation letter of 27 August 2009.  This is not a case in which it could be said that insufficient time was available to provide supporting material. 

18. Further, the Tribunal’s account of the hearing does not support the applicant’s claim that he made an oral request for extra time which was not agreed to by the Tribunal.  On the contrary, the Tribunal recorded that at the conclusion of the hearing it asked the applicant if there were any other claims or matters he wished to put before it before the hearing closed.  The applicant provided a copy of his marriage certificate and claimed that in the seven months he had been in Australia he had been helped by the Salvation Army but had not been able to get a job.  The Tribunal repeated the question and the applicant “replied [that] he had nothing else to add”, but “if he [could] get help it would be with Jesus”. 

19. The Tribunal then recorded that it “put to the applicant that, at the beginning of the hearing, it had mentioned [that] he was entitled to seek additional time to comment on or to respond to the information…given to him during hearing that the Tribunal considered would be a reason for affirming the decision to refuse him a visa”.  Critically, the Tribunal then recorded:

    Asked if he needed more time, the applicant replied in the negative and then said he had nothing else to write and had not made any complaints to the police, but his family were staying 8 km away because they were in fear and people were looking for him in [his home town].

20. There is nothing in the material before the court to support the applicant’s claim that the Tribunal failed to provide him with requested additional time and no evidence to support any claim that the Tribunal either failed to comply with s.425 of the Act or fell into jurisdictional error in any other way. In particular, insofar as there remains any scope for procedural fairness, there is nothing in the material before the court to support the applicant’s claims in this respect. I note in any event, that even if the applicant had asked for extra time, the mere denial of such extra time would not of itself constitute a jurisdictional error on the part of the Tribunal.

21. Neither ground 2 of the application nor the applicant’s claims in relation to a denial of a request for extra time establish jurisdictional error. 

22. In the document bearing a handwritten title of “amended application” and filed on 25 January 2010 the applicant recited his history, claimed that the delegate’s decision was “not right, because I faced a real persecution in India” and referred to the Tribunal refusal of his application.  The amended application then referred to Article 1A(2) of the Refugees Convention and claimed that it was “really applicable” to the applicant’s case because he was tortured and persecuted by anti-Christian groups.  On this basis it was claimed that the applicant was eligible for protection.  

23. Insofar as the applicant seeks merits review, merits review is not available in this court.  If he is generally contending that the Tribunal was wrong in its decision because he faced a real chance of persecution in India, that does not establish jurisdictional error.  Even if another decision-maker might have reached a different decision on the material before it, that does not establish that the Tribunal made a jurisdictional error.  Its findings were, in large part, based on its view of the credibility of the applicant.  Credibility findings are a matter for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1) and it has not been established that the Tribunal findings were not open to it for the reasons that it gave on the material before it. Further, as the first respondent submitted, making a wrong decision on the facts does not of itself amount to jurisdictional error.

24. Finally, the applicant said in oral submissions that he had a medical problem.  He appeared to indicate that he needed to remain in Australia because he was having treatment.  However that is not a basis for review of the Tribunal decision.  The Tribunal had no discretion to take into account such matters on humanitarian grounds or otherwise.  Nor does the court.  Insofar as the applicant has such concerns, they are matters that he may raise with the Minister, but they are not matters that are amenable to review by this court or that provide a basis for the orders that he seeks in relation to the decision of the Tribunal.

25. As no jurisdictional error has been established, the application must be dismissed. 

26. The applicant has been unsuccessful and the Minister seeks costs in the sum of $3,500.  The applicant told the court that he had no job and asked how he could pay.  However the applicant’s lack of funds is not such as to warrant departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.

27. I am satisfied on the basis of the first respondent’s submissions that the amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  31 May 2010