SZOGY v Minister for Immigration and Citizenship
[2010] FCA 1356
•13 December 2010
FEDERAL COURT OF AUSTRALIA
SZOGY v Minister for Immigration and Citizenship [2010] FCA 1356
Citation: SZOGY v Minister for Immigration and Citizenship [2010] FCA 1356 Appeal from: SZOGY v Minister for Immigration and Anor [2010] FMCA 476 Parties: SZOGY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 905 of 2010 Judge: COWDROY J Date of judgment: 13 December 2010 Legislation: Migration Act 1958 (Cth) s 91R Cases cited: House v The King (1936) 55 CLR 499
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51
SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18
VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168Date of hearing: 4 November 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 26 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms K. Hooper of DLA Phillips Fox
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 905 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOGY
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
13 DECEMBER 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the costs of the First Respondent.
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 Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 905 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOGY
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE:
13 DECEMBER 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant appeals from the decision of Federal Magistrate Driver delivered on 2 July 2010 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 26 February 2010. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa (‘the protection visa’) to the appellant.
BACKGROUND
The appellant is a citizen of India who arrived in Australia on 6 April 2009. On 8 April 2009 the appellant lodged an application for the protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for the protection visa on 3 July 2009. On 30 July 2009 the appellant applied to the Tribunal for a review of that decision.
The appellant claimed to belong to a traditional Hindu family in Kerala and that the area in which he lived contained many Christian families who gave his family support. The appellant claimed that over time he had discussed Christianity with his Christian neighbours and that they had given his family Christian books and the Bible to read. The appellant claimed that the Hindu community in his area had become suspicious of his family because of their connections with the Christian community and as a result Hindu extremists had barred his family from entering temples and attending religious ceremonies and marriages. The appellant claimed that his family were isolated by the Hindu community and that such treatment forced his father to close his business of a grocery shop. The appellant also claimed the Hindu community had destroyed his father’s grocery shop and attacked his family home. He said his family was forced to flee from their village to settle in a neighbouring state for six months.
The appellant claimed that his family sold some of their land to the Akashaparavavakal Backward Community Welfare Association (‘the Christian Association’) in order to establish a welfare community and a prayer hall. The appellant claimed that the Hindu community objected to such development and caused construction to cease. He claimed his brother had been admitted to hospital after being beaten by Hindu extremists where he was discriminated against by a Hindu physician. The appellant claimed that when he subsequently approached the physician concerning such conduct, the physician had attacked the appellant with a sharp object, injuring his shoulder and neck.
The appellant claimed that in March 2007, he and his brother became active members of the Christian Association, a decision which caused Hindu extremists to intensify their violent behaviour towards them, forcing them to move interstate. The appellant claimed that he and his brother had travelled across India with the Christian Association until March 2009. He claimed his family has received threatening calls and inquiries regarding his whereabouts.
THE TRIBUNAL’S DECISION
The Tribunal found that the appellant was not a credible witness and that there were inconsistencies and contradictions in his evidence and claims. The Tribunal also found that his evidence was inconsistent with that given by his brother, who had also applied for a protection visa. The Tribunal found that there was no plausible evidence before it that the appellant had suffered persecution in India for the reasons that he claimed. The Tribunal also noted that the independent country information before it indicated that Christians could practise their religion in Kerala in relative safety.
The Tribunal also made a further alternative finding that even if the appellant had experienced some difficulty in practising Christianity in his home village, it would be reasonable for him to relocate within Kerala.
The Tribunal was therefore satisfied that the appellant was not a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together, ‘the Refugees Convention’, or ‘the Convention’), and affirmed the decision of the delegate of the Minister.
APPLICATION TO FEDERAL MAGISTRATES COURT
By application dated 25 March 2010 the appellant applied to the Federal Magistrates Court of Australia for judicial review of the Tribunal’s decision. The appellant’s claims before Driver FM are set out verbatim as follows:
1.The Tribunal failed to consider properly the test whether the applicants [sic] would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
3. The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not a converted Christian in India was at risk of harm from radical Hindus, and not able to access effective protection.
4. The Tribunal’s decision was unjust and was made without taking into account the full gravity of [the applicant’s] circumstances and the consequence of the claim.
5. The applicant satisf[ies] the four key element[s] of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
6. The [Tribunal] has failed to investigate [the applicant’s] claim, [e]specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 1 March 2010 was effected [sic] by actual bias constituting judicial error.
Driver FM was unable to find any jurisdictional error in the Tribunal’s decision, and dismissed each of the above grounds. Driver FM made further findings in relation to submissions made by the appellant in respect of alleged errors in the appellant’s original application said to be caused by errors made by the interpreter who assisted the appellant in preparing his application. Driver FM found no jurisdictional error had been disclosed by such claims.
GROUNDS OF APPEAL
On 22 July 2010 a Notice of Appeal from the decision of Driver FM was filed in this Court. The Court sets out verbatim the following grounds of appeal:
1.The Hon. FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claims and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act. The Tribunal failed to observe this obligation amounted to a breach of a Statutory Obligation.
2.The Hon. FM Driver failed to consider the ground of my appeal that the Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec 91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious error caused by the Tribunal.
4. The Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.
The Court notes that there is no ‘Ground 3’ included in the Notice of Appeal.
SUBMISSIONS
The appellant appeared, assisted by an interpreter. He did not understand the grounds of appeal and was unable to make any meaningful submissions in support of his Notice of Appeal.
FINDINGS
Ground 1: Failure by Federal Magistrate to consider the provisions of s 91 of the Migration Act 1958 (Cth) in relation to persecution and harm
Before Driver FM the appellant raised the question of whether he would suffer serious harm as defined in s 91R of the Migration Act 1958 (Cth) (‘the Act’) if he were required to relocate in India. The present ground of appeal instead claims that the learned Federal Magistrate acted in a ‘manifestly unreasonable’ way when dealing with the appellant’s claims and ignored ‘the aspect of persecution and harm in terms of s 91R of the Act’. Accordingly, the present claim is different to that raised before the Federal Magistrate and leave is required for it to be considered. The appellant must establish that it is expedient in the interests of justice to allow such ground to be raised: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [163]-[164]. The Court is also required to consider the merits sought to be raised by the ground: see VAAC at [26].
The appellant claimed that he had been informed by his spouse that since he had left India, Hindu extremists had come to his house at night and had thrown stones and whistled outside his house. The appellant also claimed that Hindu extremists had previously put kerosene into the drinking water.
The Tribunal found that there was no plausible evidence before it that the appellant had suffered persecution in India or that any threats had been made against him. The Tribunal made the following finding:
In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered persecution in India because of his actual or imputed political opinion, his actual or imputed membership of a particular social group, his actual or imputed religion, his nationality or for any other Convention reason…
The Tribunal also found that even if the appellant had experienced some difficulty, contrary to its finding, in practising Christianity in his home village, it was satisfied that the appellant had the ability to successfully relocate to another area of Kerala.
The Tribunal did not accept that the appellant had suffered any persecution. Accordingly, the basis for any operation of s 91R of the Act did not exist.
The Federal Magistrate correctly observed that the relocation finding made by the Tribunal was not essential to its decision and was only made after the Tribunal’s finding that the appellant had suffered no persecution. Such finding was in accordance with the principle stated by the High Court of Australia in SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18.
The Court is unable to find any error in Driver FM’s conclusion relating to the Tribunal’s findings. There was simply no occasion for the Tribunal to refer to s 91R of the Act in consequence of its finding that the appellant had not suffered persecution. Accordingly, the Court sees no merit in the appellant’s first ground of appeal and accordingly leave to raise such ground is refused.
Ground 2: The Tribunal did not consider whether the appellant would suffer serious harm if he were asked to relocate
The second ground of appeal is relevantly identical to the first ground of appeal and accordingly the above findings are again applicable. The Tribunal rejected the entirety of the appellant’s claims because of numerous inconsistencies and contradictions in his evidence. It concluded that he was not a credible witness. Despite such finding, the Tribunal made an alternative finding, as set out above, that in any event, even if the appellant did experience difficulty in practicing Christianity as he claimed, it would be reasonable for him to relocate to a different part of India.
Section 91R of the Act is predicated upon a finding that persecution existed. The Tribunal found that the appellant suffered no persecution and no jurisdictional error exists in the findings of Driver FM on this issue. The Court accordingly rejects such ground.
Ground ‘4’: Failure to consider that the Tribunal’s decision was unjust
The appellant claims in the ground numbered ‘4’ (which is the third ground of appeal) that the decision of the Tribunal was unjust and was made without taking into account the full gravity of his circumstances.
Driver FM considered this ground and observed that the Tribunal found the appellant not to be a witness of truth. The mere rejection of a witness’ testimony on the ground that it is untruthful does not lead to the result that the decision is unjust. The Federal Magistrate was only concerned to determine whether jurisdictional error had occurred: see generally House v The King (1936) 55 CLR 499 at 504-505.
There is no error disclosed in the Federal Magistrate’s decision and accordingly this ground of appeal is dismissed.
In view of the above findings, the Court dismisses the appeal with costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate:
Dated: 13 December 2010
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