SZOLF v Minister for Immigration and Citizenship

[2010] FCA 1333

FEDERAL COURT OF AUSTRALIA

SZOLF v Minister for Immigration and Citizenship [2010] FCA 1333

Citation:		SZOLF v Minister for Immigration and Citizenship [2010] FCA 1333
Appeal from:		SZOLF v Minister for Immigration and Citizenship [2010] FMCA 658
Parties:		SZOLF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1217 of 2010
Judge:		NICHOLAS J
Date of judgment:		26 November 2010
Date of hearing:	26 November 2010
Date of last submissions:	26 November 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	13
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms L Buchanan of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1217 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOLF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	26 NOVEMBER 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is 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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1217 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOLF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	26 NOVEMBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an appeal from a decision of a federal magistrate dismissing the appellant’s application for judicial review of the decision of the Refugee Review Tribunal (the Tribunal) dated 28 April 2010 affirming a decision of a delegate of the first respondent refusing to grant the appellant a protection visa.

2. The appellant is a citizen of India.  He most recently arrived in Australia on 23 July 2008.  He filed an application for a protection visa on 29 August 2008.  He claims to be a Christian and a member of a Muslim family.  He claims that he preached Christianity in India after returning there from Singapore where he attended church.  The appellant claims that it was due to him preaching Christianity in India that he was attacked several times by Muslims and Hindus.  He claims that he will experience further persecution if he is required to return to India. 

3. The appellant travelled abroad on a number of occasions to Japan, Singapore and other places.  At the review hearing the Tribunal explored the appellant’s knowledge of the various churches which he claimed to have attended and, in general terms, his knowledge and understanding of the Christian religion. 

4. As to the appellant’s attendance at church in Japan, he said that he attended a Catholic church in Japan where the services were conducted in Japanese.  This is a language which the appellant accepted he does not speak.  When this matter was explored by the Tribunal with the appellant he said that he went to church in Japan simply to watch. 

5. As to the appellant’s attendance at church in Singapore, he said that he attended a Seventh Day Adventist church there.  He told the Tribunal that he attended services at that church at 10.00am on Sundays.  He was not able to inform the Tribunal of the name of that church or its precise location.  The Tribunal made enquiries in relation to the opening hours of Seventh Day Adventist churches generally and, in particular, the Seventh Day Adventist church in Jurong, which is where the appellant had been studying at relevant times.  It was satisfied that such services were not held on Sundays.

6. The appellant also claimed that he attended church in India after he returned there from Singapore.  The Tribunal observed that, in his original departmental interview, the appellant claimed to have attended church in India only once but that when he appeared before the Tribunal he claimed to have attended church there once a week. 

7. The appellant also claimed to have attended a church on Sundays in Liverpool in Sydney after his arrival in Australia.  He was not able to tell the Tribunal the name of the church.  The appellant did not know what kind of church it was other than it was not a Seventh Day Adventist church. 

8. As I have mentioned, the Tribunal explored the appellant’s knowledge of the Christian religion.  It did so in very general terms.  In some other cases decision-makers have been criticised for the way in which they have gone about this type of exercise.  In this case the Tribunal’s reasons set out in considerable detail the questions asked of the appellant and the answers given by him on this subject.  There is nothing about its treatment of this subject which suggests to me that it was in any sense unfair to the appellant or that the questioning was otherwise inappropriate.  It was a legitimate method of testing the veracity of the appellant’s version of events and his general credibility. 

9. The Tribunal stated at para [71] of its reasons for decision that it considered that there were good reasons for concluding that the appellant was not telling the truth about the problems which he claimed prompted him to leave India.  There follows in successive paragraphs of the reasons for decision a detailed catalogue of seven matters which led the Tribunal to this conclusion.  At para [80] the Tribunal records that it did not regard the appellant as a witness of truth and, more particularly, that it did not accept the truth of his claims regarding his interest in Christianity.  The catalogue to which I have referred includes, but is not limited to, the matters I referred to earlier in these reasons. 

10. The appellant filed a notice of appeal which does not specify any proper grounds of appeal.  He did not file any written submissions in the appeal. Today his submissions to me were simply that the Tribunal did not hold a proper inquiry.  It is plain from the Tribunal’s reasons for decision that there is no merit in the appellant’s suggestion that the Tribunal did not hold a proper inquiry.  The appellant had nothing to say about the reasons of the learned federal magistrate. 

11. One matter touched upon in the grounds of appeal is the issue of the reasonableness of the Tribunal’s decision.  It is suggested that the learned federal magistrate failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the appellant’s claims. That particular complaint was not raised before his Honour and is in any event unsupportable.

12. The appellant has not sought to demonstrate that the Tribunal’s decision was affected by jurisdictional error.  Plainly it was not.  The Tribunal appears to have given careful and thorough consideration to the appellant’s claims.  It did not accept that the appellant was a witness of truth.  Nor did it accept that he had a genuine interest in Christianity.  The appellant has not shown any error in the reasoning of the Tribunal or the learned federal magistrate.

13. The appeal will be dismissed with costs. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:

Dated:        1 December 2010