SZDHN v Minister for Immigration & Multicultural Affairs [2006] FCA 1539 (31 October 2006)

Last Updated: 21 November 2006

FEDERAL COURT OF AUSTRALIA

SZDHN v Minister for Immigration & Multicultural Affairs [2006] FCA 1539

SZDHN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 890 OF 2006

BENNETT J
31 OCTOBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 890 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDHN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	31 OCTOBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The appellant is to pay the first respondent’s costs fixed in the amount of $2,600.00

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 890 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDHN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BENNETT J
DATE:	31 OCTOBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant is a citizen of India who claimed in his application to the Refugee Review Tribunal to have a well-founded fear of persecution for reason of his religious beliefs. His claim was that he is a Christian from Tamil Nadu who was involved with the Congress Party of India and participated in demonstrations against the Bharatiya Janata Party (‘BJP’) in relation to their religious policies. He also claimed to have participated in demonstrations against Hindu extremists. All of the claims that he made and the detail of them depended upon his claim to be a Christian. The Tribunal set out those claims in some detail, including what might be characterised as a claim that ‘false cases’ had been filed against him by the police.

2 The appellant’s claims related to his participation in processions or demonstrations because he was a Christian. What occurred in those demonstrations was alleged conflict between Christians and Hindus. The Tribunal, for reasons that it gave which were open to it on the evidence before it, did not accept that the appellant is a Christian. Indeed, it was positively satisfied that he is not a Christian, that no one would regard him as a Christian and that he could not have been identified by any person or group as a "Christian fanatic" or a Christian.

3 The appellant complained about his participation in a Christian rally in November 1998 as a result of which he was injured, tortured, arrested, and charges were wrongly laid against him by the police. The Tribunal, for reasons that it gave and which were also open on the evidence, did not accept that such a rally occurred.

4 Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason, that is, his claimed Christianity. It said:

‘It follows I do not accept [the appellant] was involved in Christian rallies in 1992 or 1995 or November 1988 and I do not accept that he was attacked in his home in 1999 by persons who had identified him from his involvement in the 1998 rally. It follows I do not accept he was assaulted, arrested, tortured, harmed or legal proceedings were commenced because of his involvement in a procession or because of his religion or imputed religion.’

5 The Tribunal noted that the appellant had not claimed to fear persecution for any other Convention reason and that none was raised on the evidence before it. Accordingly, it affirmed the first respondent’s decision not to grant the appellant a protection visa.

6 The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court, where his application was dismissed on 20 April 2006 (SZDHN v Minister for Immigration & Anor [2006] FMCA 623). The appellant appears in person in this Court and appeals his Honour’s judgment.

The Federal Magistrates Court

7 The appellant raised five grounds of appeal before Smith FM. His Honour found that the Tribunal was clearly aware of and sufficiently addressed the appellant's claims, including his claims that he was attacked and tortured by Hindu fanatics in 1999. As his Honour noted, the appellant's claims failed as a result of the Tribunal's disbelief of his claim to be a Christian and to have been involved in religious riots in 1998 (at [20]).

8 Federal Magistrate Smith addressed each of the five grounds pleaded in the original application for judicial review and noted that the appellant had not elaborated on those grounds by way of submissions in writing or orally at the hearing (at [19]). An application by the appellant for more time to prepare submissions was refused on the basis the appellant had already been given sufficient time to prepare his application for judicial review.

Notice of appeal

9 The appellant sought an adjournment from this Court to obtain additional evidence in support of his claims. He said that he was unable to obtain the evidence that he wished to obtain for the hearing before the Tribunal. I declined to grant an adjournment as that further evidence, which concerned the merits of his application for a protection visa, is not relevant to the appeal before me.

10 The appellant’s notice of appeal raises two grounds of appeal, in addition to generally asserting that ‘the federal magistrate erred in finding that there was no error in the Tribunal’s decision’.

11 First, the appellant contends that the ‘Tribunal’s failure to make a finding in relation to registration of false cases by police’ against him constituted jurisdictional error. The Tribunal had described the appellant's claims of "cases" filed against him, one of which could be described as a "false case" or an allegation of a "false case". It is clear from the Tribunal’s decision that it did make a finding in relation to that matter. In stating that it did not accept the matters based upon the appellant's claim to have been a Christian it noted specifically ‘I do not accept [that]...legal proceedings were commenced [against him] because of his involvement in a procession or because of his religion or imputed religion’. I am satisfied that those were the matters to which the Tribunal referred in its reference to "legal proceedings". The appellant has failed to establish jurisdictional error on this ground.

12 Secondly, the appellant contends, as I understand it, that the Tribunal failed to address his claim ‘that he was attacked and tortured by Hindu fanatics in 1999’, which was a central part of his claims, and that that failure constituted jurisdictional error.

13 As I have noted, the Federal Magistrate specifically addressed that aspect of the appellant’s complaint. As his Honour said, the appellant's claim was addressed by the Tribunal but failed as a result of the Tribunal's essential disbelief of his claim to be a Christian (at [20]). His Honour’s approach reveals no error.

Conclusion

14 No ground for error on the part of the Federal Magistrate or jurisdictional error on the part of the Tribunal has been established. It follows that the appeal must be dismissed with costs.

15 The Minister makes an application for fixed costs and has filed an affidavit in support of that application. I am satisfied that the Minister’s costs should be fixed in the amount of $2,600.00.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 17 November 2006

The Appellant appeared in person.

Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	31 October 2006
Date of Judgment:	31 October 2006