SZRDB v Minister for Immigration
[2012] FMCA 470
•4 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRDB v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 470 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – Tribunal finding that the applicant’s claims were exaggerated and in part false and that his fear was not well-founded – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| Lafu v Minister for Immigration (2009) 112 ALD 1 Minister for Immigration v NAMW [2004] FCAFC 264 Norvill v Chapman (1995) 57 FCR 451 at 462 Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 SZBEL v Minister for Immigration (2006) 228 CLR 152 VHAJ v Minister for Immigration [2003] FCAFC 186 |
| Applicant: | SZRDB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 249 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 4 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2012 |
REPRESENTATION
| Solicitors for the Respondents: | Ms V Bulut Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 249 of 2012
| SZRDB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 10 January 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Kerala State in India and had made claims of religious persecution. The following statement of background facts relating to the applicant’s claims for protection and the decisions of the delegate and the Tribunal on them is derived from the Minister’s written submissions.
The applicant is a citizen of India and arrived in Australia on 10 February 2011.
The applicant applied for a protection visa on 5 April 2011. The applicant's substantive claims are set out in a statement attached to his protection visa application[1] and can be summarised as follows:
a)the applicant was brought up in a poor Christian family holding Christian values;
b)after finishing school, the applicant started the Kerala Catholic Youth Movement (KCYM) in Vettuthura, India. He was the Secretary of the group from 1997 to 2000. He organised rallies against the "BJP" and other Hindu extremists while holding this position;
c)in 2008, the applicant organised a rally against the Community Party of India - Marxist (CPIM) “because of their lack of action against Hindu extremists”. He was later arrested and released without charge;
d)the applicant prepared a memorandum to the local police and state government about the “recent attack” by Hindu extremists, the “recent episode of the destruction [of] the statue for the Stations of the Cross” and asking for the protection and security for Christians in his area;
e)the local Catholic church was attacked by armed assailants during a Sunday service. The applicant was dragged out of the Church and accused of proselytising. The applicant was beaten, stripped and forced to walk naked for several miles, while another church member was taken by the extremists and is still missing; and
f)the applicant was traumatised over his “helpless situation in India” and was “demoralised and deranged”. His family members advised him to leave India to avoid further persecution and harassment.
[1] Court Book (“CB”) 28-29
A delegate of the Minister interviewed the applicant on 31 May 2011.
Before the delegate, the applicant made further claims, which can be summarised as follows:
a)the applicant mobilised people in his village for rallies organised for the KCYM;
b)the applicant continued his involvement with the KCYM after 2000 and made it his priority;
c)the applicant was involved in arranging the marriage of a Christian friend to a Hindu woman who had converted to Christianity, and that he had received death threats over the telephone as the woman's family belonged to the Hindu nationalist organisation Rashtriya Swayamsevak Sangh (RSS);
d)in September 2009, the applicant was taken to hospital after Hindus broke into a prayer meeting, abused and beat the applicant causing him to lose consciousness;
e)after the applicant returned to India from his first trip to Australia (ie between June 2010 and February 2011), he was stripped and beaten by the same group which had attacked him previously; and
f)the applicant reported the 2009 incident to the police, but no positive steps were taken.
On 15 June 2011, the delegate of the Minister rejected the application[2]. In summary, the delegate found that:
a)the applicant was not credible - there were inconsistencies in his claims and the vague details provided in response to a number of questions put to him;
b)despite holding the position of Secretary, the applicant was vague and unable to provide details about his participation with the KCYM;
c)although the applicant claimed to fear being killed by the converted woman's family, for being involved in arranging her marriage to a Christian man, the applicant had returned to India, from the UK, in 2007, and from Australia in 2010, for extended periods of time without sustaining any harm;
d)there was no evidence to suggest that Christians are targeted because of their religion in Kerala as independent country information indicates that Christians form a significant portion of the population of Kerala and are relatively safe;
e)given that the applicant could not provide names of the churches he allegedly attended regularly in the UK and in Australia, his ongoing involvement with the Catholic church was implausible; and
f)even if the applicant's claims were accepted, there is effective state protection.
[2] CB 33-46
The Applicant's claims before the Tribunal
On 19 July 2011, the applicant applied to the Tribunal for a review of the delegate’s decision[3]. The applicant attended a hearing at the Tribunal on 29 November 2011.
[3] CB 47-50
The Tribunal affirmed the decision of the delegate on 10 January 2012. The Tribunal’s decision record is at CB 97 to 115.
The applicant’s oral evidence before the Tribunal is summarised at [26]-[53] of the Tribunal's decision record. That evidence included the following matters:
a)the applicant came to Australia in April 2010 but did not seek protection as his father became ill and the applicant had to return to India[4];
b)the RSS wanted to harm the applicant because he was preaching the Bible to Hindus and Muslims[5];
c)the applicant had lived in the UK for three and a half years, until 2007, when he was deported by immigration authorities[6];
d)the applicant feared returning to India while living in the UK but he did not apply for protection as he was told that no further protection visas were issued to Indians and he would face trouble if he applied[7];
e)the applicant, along with a group of young people, started the KCYM branch in his village, although he ceased his involvement in about 2000 or 2001[8];
f)the applicant taught Sunday School and catechism classes to children of all religions, as well as holding general awareness classes against tobacco, drugs and alcohol, which were open to the general public and were not confined to “preaching places”[9];
g)in August or September 2009, a prayer meeting was interrupted and the applicant was forced outside, dragged into a car and driven for some twenty kilometres, in the course of which he was beaten by others in the car and told not to be involved in preaching. The applicant “somehow” ran away from the men, and, although they followed him, he was able to evade them[10];
h)in October or November 2010, the family of the converted woman, only known to the applicant as Sheena, who had married his Christian friend approached the applicant, kicked him in the stomach and “caused problems” for him[11]; and
i)although the applicant reported the 2009 incident to the police, they took no action as they did not regard his case as serious[12].
[4] CB 103 [27]
[5] CB 104 [29]
[6] CB 104 [32]
[7] CB 108 [49]
[8] CB 105 [35]
[9] CB 105 [37]
[10] CB 106 [42]
[11] CB 107 [43]
[12] CB 107 [45]
At the invitation of the Tribunal, the applicant also submitted a number of documents after the hearing, namely:
a)a "Baptism Certificate Diocese of Trivandrum (Latin)" dated 3 December 2011 stating that the applicant was baptised at St Sebastian's Church Vettuthura on 13 May 1979;
b)a letter from St Sebastian's Church Vettuthura dated 3 December 2011 stating that the applicant bears a good character and that he is a “very active member” of the KCYM;
c)two Certificates of Merit on the letterhead of the KCYM;
d)a number of documents from AJ Hospital relating to the applicant's suspected cardiac illness in June 2009; and
e)a number of documents from Sree Uthradom Thirunal Hospitals relating to the applicant's diagnostic testing and treatment for a gastrointestinal complaint in January and February 2011.
The Tribunal’s decision
The Tribunal’s findings and reasons are set out at CB 110 to 114.
In respect of the applicant's claims the Tribunal found that:
a)although there were concerns about the authenticity of the two documents provided by St Sebastian's Church Vettuthura, it was prepared to accept that the documents were genuine and that the applicant was a member of the Catholic (Latin) church[13];
b)doubt was cast over the applicant's claims to have attended Mass every Sunday while outside of India, given that the applicant could not provide the names of churches he had allegedly attended in the UK and in Australia[14];
c)despite the applicant's claims that he devoted a considerable part of his youth and young adulthood to religious observance and activism, his account of it was notably vague and largely lacking in circumstantial detail[15];
d)the applicant had significantly exaggerated his level of involvement with the KCYM and it was not satisfied that the applicant involved himself in the forms of religious activism in India which he claims, or that he was a leading figure within the KCYM[16];
e)given the applicant's brief and vague account, as well as the delay in presenting the claim, it was not satisfied that the applicant was ever involved with converting a Hindu woman to Christianity, or arranging her marriage to a Christian friend in a way which caused him to be targeted by Hindu activists or members of her family[17];
f)it was not satisfied that the applicant ever suffered physical harm in India as the applicant had presented differing and inconsistent claims relating to the physical harm he allegedly suffered and the medical evidence presented did not support the applicant's claims[18]; and
g)doubt was cast on the credibility of the applicant's claims to fear harm in India given his delay in seeking protection[19].
[13] CB 110 [59]-[60]
[14] CB 111 [61]
[15] CB 111 [62]
[16] CB 111-112 [63]-[66]
[17] CB 112 [68]-[67]
[18] CB 112-113 [70]-[75]
[19] CB 113-114 [76]-[77]
Accordingly, although the Tribunal accepted the applicant was a Catholic, on the basis of independent country information before it, the Tribunal was not satisfied that there was a real chance that the applicant would suffer harm for such a reason in Kerala, India. The Tribunal was also not satisfied that the applicant was, or was known as, an activist member of the Catholic Church in his area[20].
[20] CB 114 [78]-[79]
These proceedings began with a show cause application, filed on 6 February 2012. The applicant continues to rely upon that application. There are three grounds in the application:
1. The Tribunal constructively failed to exercise its jurisdiction;
Particulars:
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.
2. The Tribunal did not give to the applicant before the hearing the independent information that it had about India. The Tribunal used this information. This was against section 424A of the Migration Act 1958.
3. The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant the opportunity to be heard in respect of those matters.
The allegation that the Tribunal failed to engage in an active intellectual process is not supported by the record of the Tribunal decision. There is no doubt that the Tribunal considered the applicant’s claims and engaged in an active intellectual process in doing so.
Secondly, there is no substance to the asserted breach of s.424A of the Migration Act in relation to the general country information relied upon by the Tribunal. The Tribunal was under no statutory obligation to disclose that information. Thirdly, there is nothing to indicate a want of procedural fairness in relation to the Tribunal’s adverse credibility conclusions. The Tribunal’s record of what occurred at the hearing conducted by it establishes that the Tribunal explained to the applicant its credibility concerns.
The Minister’s submissions support these conclusions in detail. I agree with those submissions.
Ground 1
The applicant asserts that the Tribunal failed to properly consider, or “engage in an active intellectual exercise”, regarding certain documents submitted to corroborate his claims. Further, the applicant claims that Tribunal erred as it placed no weight on these documents.
The applicant appears to be referring to the idea of an “active intellectual process” in assessing evidence and material before a decision-maker as being necessary to the task of administrative decision-making: Norvill v Chapman (1995) 57 FCR 451 at 462 and Lafu v Minister for Immigration (2009) 112 ALD 1.
In this instance, contrary to the claim, the Tribunal did not fail to properly engage with any of the documents submitted by the applicant, which are set out at [10] above and at [54] of the decision record[21]. The decision record discloses that the Tribunal did engage in a meaningful and appropriate way with each of the documents provided by the applicant, namely:
a)the baptismal certificate at [59]-[60][22];
b)the supporting letter from the applicant's parish priest at [59]-[60], [63] and [65][23];
c)the two certificates from the KCYM at [63] and [65][24]; and
d)the medical documents at [73]-[74][25].
[21] CB 109
[22] CB 110-111
[23] CB 110-112
[24] CB 111-112
[25] CB 113
The Tribunal accepted the documents were genuine, despite independent country information on document fraud in India. The Tribunal accepted on the basis of the supporting letter and baptismal certificate that the applicant was a Catholic, but did not accept that the applicant would face harm in India by reason of that matter.
Similarly, it accepted on the basis of the supporting letter and the two certificates from the KCYM that the applicant had been a member of the KCYM. However, when the Tribunal assessed the probative weight of the supporting letter, the certificates from KCYM and the medical documents in relation to the applicant’s refugee claims, the documents did not themselves corroborate the applicant's claimed level of involvement in the KCYM and the circumstances of the assault by the RSS. These findings were open to the Tribunal.
Under Ground 1, the applicant also asserts that the Tribunal was in error in first assessing his credit without reference to the substance of the documents. On a holistic view of the Tribunal's analysis, I accept that the Tribunal assessed and weighed the corroborative evidence in balance with the applicant's own evidence.
Ground 2
The applicant contends by Ground 2 that the Tribunal failed to provide him with independent country information in breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”).
Under s.424A(3)(a), the Tribunal is not obliged to provide an applicant with information that is “not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member”. It is clear that the country information cited by the Tribunal in its decision was “not specifically about the applicant or another person”. The information simply pertained to a class of persons, namely the Christian population of Kerala, members of the Catholic (Latin) church in India and conditions in India regarding document fraud.
In this respect, Kenny J’s comments in VHAJ v Minister for Immigration [2003] FCAFC 186, as quoted by Beaumont J in Minister for Immigration v NAMW [2004] FCAFC 264 (at [45]) are apposite:
...It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant’s claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal’s decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information “just about” a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within para 424A(3)(a) of the Act...
Accordingly, there was no obligation on the Tribunal to provide this information to the applicant.
Ground 3
By Ground 3, the applicant appears to allege a failure by the Tribunal to comply with s.425 of the Migration Act, consistent with the principles considered in SZBEL v Minister for Immigration (2006) 228 CLR 152. The applicant does not provide any particulars, apart from a reference to the Tribunal reaching “adverse conclusions that were not obviously open to it on the known material”.
The Tribunal invited the applicant to a hearing, which he attended and gave oral evidence. It is clear from the decision record that the issues which the Tribunal canvassed with the applicant at the hearing put him sufficiently on notice that they were ones which the Tribunal would need to consider when determining the application for review. The Tribunal put a number of significant matters to the applicant for comment during the course of the Tribunal hearing, including:
a)concerns about inconsistencies in his evidence[26];
b)new claims only raised at hearing[27];
c)the failure to seek protection in the UK and his delay in seeking protection in Australia[28]; and
d)independent country information[29].
[26] CB 106-107 [42], [44] and [46]
[27] CB 105 [37]-[38] and CB106 [40]
[28] CB 108 [49]-[50]
[29] CB 106 [39] and CB 108 [48]
The Tribunal fully considered the applicant's evidence on these and other issues but found that he had not provided plausible or credible evidence in relation to key aspects of his claims. It is at the core of the Tribunal's fact finding role to make findings on credibility. A finding on credit is “...the function of the primary decision-maker par excellence”: Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.
The findings made by the Tribunal were open to it.
There is no jurisdictional error apparent on the material before me. Accordingly, the Tribunal’s decision is a privative clause decision and the application must be dismissed. I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs. The Minister seeks costs fixed in the amount of $4,000. 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 $4,000.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 7 June 2012
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