SZRNK v Minister for Immigration - [2012] FMCA 973

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRNK v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 973

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – applicant not believed – no jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth)

Minister for Immigration v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303

Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZRNK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1209 of 2012

Judgment of:

Driver FM

Hearing date:

23 October 2012

Delivered at:

Sydney

Delivered on:

23 October 2012

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

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 $6,471 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1209 of 2012

SZRNK

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 is dated on its face 18 May 2012 and was certified on behalf of the Tribunal’s District Registrar on 21 May 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims based upon his conversion to Catholicism and his association with a radical Hindu group in India, the Rashtriya Swayamsevak Sangh party (RSS). The Minister’s written submissions filed on 11 October 2012 conveniently summarise the applicant’s protection claims and the Tribunal’s decision on them.
The applicant is a citizen of India. He arrived in Australia on 15 September 2010[1], and applied for the visa on 6 December 2010[2]. The delegate interviewed the Applicant on 21 October 2011[3], and refused the visa on 10 November 2011[4]. The applicant applied to the Tribunal for review on 2 December 2011[5]. The Tribunal held a hearing on 28 March 2012[6]. On 3 April 2012 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (the Migration Act)[7].
[1] court book (CB) 215 [2]
[2] CB 1-64
[3] CB 219 [27]
[4] CB 98-126
[5] CB 127-131
[6] CB 151-153
[7] CB 156-158
The applicant claimed to fear persecution in India for reason of his religion and imputed political opinion. He claimed that he was raised in a Hindu household in Kerala, and was approached by the RSS party to spy on other religious groups. He claimed that after being given an assignment to visit a Christian monastery in 2007 he started believing in Christianity, and left the RSS. He claimed that thereafter he was threatened by the RSS. He claimed that he was baptised in 2010 and married a Catholic girl, and that his family disowned him. He claimed that he could not live anywhere in India because his life was in danger from the RSS and he was on a “hit list”, and the police would not protect him. He claimed he attended a Catholic church in Sydney[8].
[8] See generally CB 217-223
The Tribunal found that the applicant was not credible, and that he was never involved with the RSS, noting inconsistencies between his claims concerning the RSS and independent country information, and concerning his alleged residence in Velankanni in 2010, which reflected on the general credibility of his claims and chronology of events[9]. The Tribunal concluded that the applicant was not involved with the RSS, did not spy on other religious groups and was not in fear of persecution because he left the RSS[10]. The Tribunal accepted that the applicant had converted to Catholicism and been baptised, but given its findings that the applicant was not associated with the RSS rejected his claim that the RSS would target him because of any former association with them[11]. The Tribunal also rejected the applicant’s claim that the RSS or other groups would target him simply because of his conversion, noting the absence of any reports that converts in Kerala are targeted[12]. The Tribunal rejected the applicant’s claim that his family has disowned him after his marriage, or that he feared any harm from his family or because he was a Catholic[13]. The Tribunal accordingly affirmed the delegate’s decision.
[9] CB 230-231 [70]-[76]
[10] CB 231 [77]-[79]
[11] CB 232 [83]-[86]
[12] CB 232 [86]-[87]
[13] CB 232-233 [88]-[95]
These proceedings began with a show cause application filed on 4 June 2012. There are four narrative grounds in that application:
1. The Refugee Review Tribunal and the Delegate of the Minister of Immigration and [C]itizenship has made an error of law in considering that I do not satisfy Section 36(2) of the Migration Act and I do not meet the definition of Refugee as defined in Article 1 of the Refugee Convention Article 1A(2)
2. In Para 86 the Tribunal states, “The tribunal considered whether the applicant has a well founded fear of persecution for converting to Catholicism by the RSS or other Hindu extremist groups or by others in the general Kerala community. In other words would the RSS still target the applicant regardless of the fact that the applicant was never in the RSS? Would anybody else target the applicant because of his conversion to Catholicism. The Refugee Review Tribunal is incorrect when it says in para 90 “The tribunal considered whether the applicant has a well founded fear of persecution simply because he is a Catholic” and further continues that “the above country information indicates that Christians (including Catholics) in general are not mistreated in Kerala, although sporadic incidents do occur………..”
As per in Para 91 the Tribunal says, “Based on the country information, the tribunal does not accept that the applicant has a well founded fear of persecution because he is a Catholic”. The Tribunal has based its decisions on the general information available in country reports relating to the persecution of Catholics and not on converted Catholics or Christians. The Tribunal here has failed to consider that I am a converted Christian. I belonged a High Class Hindu Priest family and in converted to become a devoted Christian. My situation is completely different from a natural Christian or Catholic living in India than a converted Christian. The Tribunal in its decision puts emphasis that “Christians (including Catholics) in general, are not mistreated in Kerala”. The Tribunal has failed to consider the situation of converted Christians including Catholics in whole of India where there are several incidents of persecution of converts from one religion to another. The Tribunal has not provided me any natural justice. It has failed to make any independent finding in regard to the persecution of aced by Converts of one faith into another faith, fate of political spies or the risk faced by entering into interfaith marriages. The Tribunal is completely silent on everyday news coming from India in which the parents [boast] about the honour killings.
3. The [Tribunal] erred in deciding that I do not fear persecution or serious harm if I go back to India. The Tribunal and the Minister have ignored the fact that I was attacked and was seriously injured and in this attack I might have lost my life also. The Tribunal did not consider this fact into consideration at all. The Tribunal just based its decision on assumptions only that I do not have fear of any persecution in Kerala.
4. Based on my marriage in a Catholic Church, the photographs my marriage participating in Catholic services and letters from Father John and Mr. Joseph the Tribunal accepts my claims that I am a Catholic. At the other hand the Tribunal in its hearing and in its decision repeatedly conveyed that I am not a credible witness because I had limited knowledge of Christianity or I was mistaken about the timings of the services in the Church or my limited description about the significance of Velankanni town from Christianity point of view. On the basis of this, it concluded that … the claims of my involvement with the RSS and that my employment by the RSS to spy on Muslim and Christian groups to be not credible (para 77). The Tribunal has not made any concrete finding that I was not working for RSS and I do not have any risk from RSS. These assumptions made by the Tribunal are not based on any evidence and therefore the Tribunal is in error of judgement. The Tribunal made a decision that I do not face a real chance of persecution from my family due to converting to Catholicism or I did not have a well founded fear of persecution because of my conversion to Catholicism. The decision of the Tribunal is arbitrary, capricious, irrational and illogical.
The applicant confirmed that he continues to rely upon that application.
In summary, the application makes the following complaints:
a)the Tribunal failed to consider that the applicant was a “converted Christian” and as such his situation is “completely different from a natural Christian or Catholic living in India” (Ground 2);
b)the Tribunal failed to consider the claim that the applicant was attacked and seriously injured (Ground 3);
c)although the Tribunal accepted he was Catholic, on the basis of his limited knowledge of Catholicism, it rejected claims that he spied for the RSS. The Tribunal made no “concrete finding that [he] was not working for RSS” (Ground 4);
d)the decision of the Tribunal is arbitrary, capricious, irrational and illogical (Ground 4);
e)the Tribunal did not consider that families in India conduct honour killings to safeguard the traditions, race and religions of their ancestors (Ground 2).
I received as evidence the book of relevant documents filed on 22 June 2012.
I received as a submission the applicant’s affidavit filed on 4 June 2012 in support of his application. Attached to that affidavit were the Tribunal decision, which is also reproduced in the court book, and a number of documents which fall under the description of “country information”. I accepted those documents as evidence, subject to relevance. The applicant initially asserted that he had put the country information to the Tribunal for its consideration. However, on examination, it became apparent, among other things from the date they were accessed on the internet, that that was unlikely. The applicant ultimately conceded that he obtained the documents after the Tribunal’s decision. They are, in my view, not relevant to the application before the Court.
The applicant contends in Ground 1 of his application that the Tribunal made an error of law. Unfortunately, that ground is not particularised and, in the absence of particulars, it is effectively meaningless. It is plain from the applicant’s oral submissions that he is concerned about the outcome of his review application to the Tribunal. He is in particular concerned that the Tribunal did not accept his claims concerning his association with the RSS. It was that claim which, in the applicant’s mind, established the well-foundedness of his fear of returning to India. The application, however, does not rise above a contest over the merits of the Tribunal decision. The Tribunal was not persuaded that the applicant was associated with the RSS in the manner he claimed or, indeed, at all. The Tribunal was prepared to accept that the applicant had married a Catholic and had converted to Catholicism.
The Tribunal’s findings that the applicant was not credible and his claims to any past association with the RSS was untrue is a finding of fact par excellence[14]. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision, and there is no error of law in the Tribunal making a wrong finding of fact or engaging in unsound reasoning[15].
[14] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]
[15] see Minister for Immigration v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303 at [20] and cases there cited
Ground 2 of the application asserts that aspects of the applicant’s claim were not addressed or not properly addressed, but the short answer is in the body of the Tribunal’s reasons.
Contrary to statements in ground 2 of the application, the Tribunal did not fail to consider that the applicant was a convert as opposed to being born a Christian, as [87][16] of the reasons demonstrates.
[16] CB 232
Ground 3 of the application asserts that the Tribunal ignored the fact that the applicant was attacked and seriously injured, and that in that attack he might have lost his life. The applicant asserts that the Tribunal did not consider that part of his claims. It is true that in his initial written claims the applicant had referred to being attacked, but he did not further develop that claim before the Tribunal. It was not mentioned at the oral hearing. In my view, if the claim of physical harm was an element or integer of the applicant’s claims, the Tribunal did not need to specifically address it, having rejected the applicant’s claim of association with the RSS. It was that association which the applicant asserted was the reason for the attack and, in rejecting the association, the Tribunal must have been taken to have rejected the claim of physical harm by reason of that association.
Contrary to Ground 4, the Tribunal has made “concrete findings” that the applicant was not working for the RSS or had any fear of harm from the RSS. The applicant’s disagreement with this finding does not establish any error of law by the Tribunal. As the Tribunal’s conclusion to this effect was based on its view that the applicant was not a credible witness it cannot be said to be illogical.
Further, the Tribunal accepted that the applicant was married in the Catholic Church and became a Catholic. The Tribunal specifically considered whether the applicant would come to harm by reason of that marriage and his faith, whether as a convert or generally. The Tribunal found that there was no real risk that the applicant would come to harm for those reasons. The conclusions reached by the Tribunal on the applicant’s claims were open to the Tribunal on the material before it.
The applicant has failed to demonstrate any jurisdictional error by the Tribunal. The decision is, therefore, a privative clause decision, and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. 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 $6,471 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 25 October 2012