SZOPO v Minister for Immigration and Citizenship [2011] FCA 150 (15 February 2011)

Last Updated: 25 February 2011

FEDERAL COURT OF AUSTRALIA

SZOPO v Minister for Immigration and Citizenship [2011] FCA 150

Citation:		SZOPO v Minister for Immigration and Citizenship [2011] FCA 150
Appeal from:		SZOPO v Minister for Immigration & Anor [2010] FMCA 895
Parties:		SZOPO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1687 of 2010
Judge:		NORTH J
Date of judgment:		15 February 2011
Date of hearing:	15 February 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	29
Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	Ms K Hooper
Solicitor for the Respondents:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1687 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOPO Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	15 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed;
2. The appellant pay the first respondent’s costs of the appeal;

THE COURT DIRECTS THAT:

3. Where the name of the appellant appears in the transcript that reference be replaced by the words “the appellant”;
4. Where the name of the appellant’s colleague is referred to in the transcript, that reference be replaced by the words “the appellant’s colleague.”
   

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 1687 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOPO Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	NORTH J
DATE:	15 FEBRUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered by Driver FM on 16 November 2010. The federal magistrate dismissed a review of a decision of the Refugee Review Tribunal (the Tribunal) made on 13 August 2010. The Tribunal affirmed a decision of the delegate of the first respondent not to grant the appellant a protection visa.

THE CLAIMS

2. The appellant is a citizen of India. He claimed to be a Hindu of the Paravan caste. He claimed to fear persecution if returned to India on the basis of his membership of that social group, and also on the ground of religion. He claimed to have converted to Christianity after marriage to his wife, and to have experienced violence from fanatical Hindus as a result of his conversion.
3. The appellant claimed that throughout his schooling, he was subjected to discrimination as an ‘untouchable’ by students from higher castes. He said he was forced to join the Rashtreeya Swayam Sevak Sanghom (RSS) during his student days. The RSS is an organisation of Hindu religious extremists. The appellant claimed that he could not resist the pressure to join the organisation. He said that he was nominated to become the constituency secretary of the organisation. He also became the secretary of the Bharathiya Masdhoor Sanghom (BMS), a leading labour union in India.
4. The appellant then he met his future wife, who is an Orthodox Christian, and determined to convert to Christianity. He said that high caste Hindus tried to dissuade him from marriage, and threatened to kill him and his proposed in-laws and wife if the marriage proceeded. He said he was discriminated against at work for the same reason. On 11 January 2006 he underwent a civil marriage ceremony. On 30 June he was baptized and married on 30 July 2006.
5. Following the marriage he claimed to have experienced many incidents of violence and attempts on his life. He claimed that the police took no action, because they acted under the influence of the upper caste members who were responsible for the violence against him. In February 2007, he and his wife had a son. The appellant claimed that he was unable to visit his newborn son because of threats from the RSS and BMS.
6. In July 2007, in the course of wedding anniversary celebrations, the appellant claimed that members of the RSS raided the appellant’s home armed with weapons and attempted to force he and his wife to renounce Christianity. Then in March 2008, when working in Ernakulam, he returned to visit his mother, who was ailing and aged, and claimed that RSS activists attacked himself and his wife. He said that they inflicted grave injuries on him and caused their son injury, for which he was admitted to the hospital in Trivandrum.
7. Then he claimed that in Holy Week whilst attending church, a group of RSS and other Hindu fanatics pelted him with stones and had to be dispersed by the police. He claimed that he could not get any justice from the lawful authorities, government or police. He said he had no alternative but to leave India to save his life. He and his wife left India leaving their son in the care of his mother. Within two weeks his wife returned to India, but he remained in Australia.

THE DECISION OF THE TRIBUNAL

8. The Tribunal set out at length the contents of the appellant’s statement made in support of his visa application. It summarised his interview with the departmental delegate, and set out the evidence given by the appellant to the Tribunal. It also referred to the post hearing correspondence with the appellant. The Tribunal explained its reasons for rejecting his application. After setting out the claims made by the appellant, the Tribunal said that it did not accept the appellant as a truthful witness. The Tribunal said that it was likely that the appellant had manufactured the entirety of the claims.
9. The Tribunal then set out at some length the problems with the evidence which the appellant had given to the Tribunal. For instance, it explained that the evidence in relation to the appellant’s employment in India, and the circumstances in which he came to Australia, were problematic and indicative of the appellant’s overall poor credibility.
10. By way of example, the Tribunal explained that the appellant came to Australia on a visitor visa. In order to obtain that visa, the appellant provided documents which showed that he was employed as a director of a food company in India, and earned nearly 600,000 Indian Rupees per year in that position. Before the Tribunal, the appellant denied that he earned about 600,000 Indian Rupees per year and said that he earned around 36,000 Indian Rupees per year.
11. Then, to the departmental delegate, the appellant said that he did not seek permission from his employer before he left India, and that a friend helped him to obtain the visitor visa. The appellant said to the Tribunal that his employer helped him obtain the documents relating to his employment, and helped him leave India because they were sympathetic to his circumstances.
12. The Tribunal concluded at [58] as follows:

The Tribunal does not accept that the applicant has been truthful in relation to his employment and financial circumstances in India. The Tribunal considers that the employment documentation provided to the Department was accurate and the applicant has given inconsistent and untruthful evidence as to how he acquired that documentation. The Tribunal does not accept that the applicant did not earn the amount shown in the employment documentation provided to the Department for his application for a visitor visa, given that he confirmed that he was employed as a manager in India and does not accept that he earned the significantly lower amount that he claimed during the Tribunal hearing.

13. Next, the Tribunal considered the evidence relating to the appellant’s travel to Australia. It regarded this as “extremely adverse to the applicant’s overall credibility.” The Tribunal had information which it put to the appellant about the movements of a fellow employee of the appellant in India. The Tribunal said that that information indicated that both the appellant and the appellant’s colleague arrived in Australia on the same flight from India and resided at the same address in Australia since their arrival. However, the appellant said to the Tribunal that he met his colleague at Lidcombe Railway Station because he had heard him speaking Malayalam. He also stated that his colleague had been in Australia for about 12 months.
14. The Tribunal observed that, by contrast, the appellant’s colleague told the Tribunal that he and the appellant did know each other, but he did not know that the appellant was leaving India. The Tribunal did not accept the appellant’s explanation of the inconsistency between his evidence and the evidence of the appellant’s colleague. The Tribunal said at [59]:

The Tribunal does not accept that the applicant has been truthful in relation to his knowledge of [the appellant’s colleague]. The Tribunal considers that the applicant has attempted to conceal his knowledge of [the appellant’s colleague] and the fact that they travelled to Australia together. The Tribunal considers that this evidence is indicative of the fact that [the appellant’s colleague] and the applicant planned their departure together and that the applicant has not been truthful in relation to these issues. The Tribunal considers that the applicant’s evidence in relation to these issues raise further serious doubts about the applicant’s credibility.

15. The Tribunal then went on to list a number of additional matters which caused it to have serious doubts about the appellant’s credibility. The Tribunal found that the evidence concerning the appellant’s association with the RSS was confused and problematic. It found that his knowledge of the names of the leaders of the RSS was not consistent with his claim to have been a member for a long period. It found that his claim that the RSS wanted to kill him and his family and made threats over a period of seven years was inconsistent with evidence indicating he was employed as a manager.
16. The Tribunal thought that it was not credible that if the appellant was sought by Hindu extremists for such a lengthy period, that they would not have been able to locate him at a place where he had been employed as a manager since 2004. The Tribunal also found that the evidence concerning the appellant’s claims to injuries was confused and inconsistent. Then, summarising its conclusions, the Tribunal explained at [66] that it “considers that the applicant has manufactured a set of claims in an attempt to provide a basis for protection in Australia”.
17. The Tribunal then rejected each of the factual assertions made in support of the appellant’s claim.
18. Next, the Tribunal turned to consider the claim that the appellant suffered harm as a result of his status as a member of the Paravan Caste. It accepted that the Paravan Caste is a scheduled caste in India, and that some persons from scheduled castes may suffer discrimination. However, the Tribunal did not accept that the appellant was disadvantaged. He had a good education and employment and was a middle class professional. The Tribunal was not satisfied that there was a real chance that the appellant would suffer harm in relation to his membership with of Paravan Caste on return to India.
19. Finally, the Tribunal considered the claim that the appellant feared persecution as a Hindu who had converted to Christianity. The Tribunal accepted that there was difficulty for persons converting from Christianity and there could be social discrimination for persons who marry outside their caste or religion. The Tribunal however did not accept that the appellant had been harmed by the RSS as a result of his marriage. This was inconsistent with the fact that he remained in India for a significant time following his marriage to a Christian woman.
20. Finally, the Tribunal did not accept that the appellant was a practising Christian. It considered his conversion to Christianity was nominal and for the purpose of his marriage. It did not accept that the appellant would seek to practice Christianity on return to India in any manner different from his past practice, and it did not accept that such a practice would attract any serious adverse consequences.

THE JUDGMENT OF THE FEDERAL MAGISTRATES COURT

21. The appellant then applied to the Federal Magistrates Court for review of the decision of the Tribunal. The grounds of that application were as follows:
    1. The Tribunal failed to consider an integer of the applicant 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 whilst the Tribunal formed the view that there may be difficulties for persons converting from Christianity and there may be social discrimination for persons who [marry] outside their caste.
       
    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 applicants satisfy the four key elements 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.
       
    4. The [Tribunal] has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 13 August 2010 was effected by actual bias constituting judicial error.
       
22. The federal magistrate rejected that there was any basis for the allegation of actual bias. The federal magistrate rejected the ground which alleged a failure to consider an integer of the appellant’s claim, namely his alleged risk of harm as a result of conversion to Christianity. The federal magistrate demonstrated that these claims were considered by the Tribunal.
23. In relation to grounds 2 and 3, the federal magistrate said that they were in template form but, in any event, the Tribunal clearly made findings that it was not satisfied that the appellant faced a real chance of persecution for a Convention reason. As a result it was bound to affirm the decision of the delegate to refuse the protection visa. The federal magistrate rejected the final ground which alleged that the Tribunal failed to investigate the appellant’s claims. He explained that the appellant had not established the basis for any such duty in this case.

THE NOTICE OF APPEAL

24. Then, on 3 December 2010, the appellant filed a notice of appeal in this Court. The grounds were as follows:
    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 learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.
       
    3. 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.
       
25. The grounds are unparticularised. The appellant attended the hearing of the appeal, assisted by an interpreter in Malayalam. When asked to elaborate on the grounds of appeal and explain what he meant by them, he said that he had told the truth to the Tribunal, and that the Tribunal did not believe him. He said that whatever he said to the Tribunal was true, that he had been attacked by the RSS, and that he had faced the problems concerning which he gave evidence to the Tribunal.
26. To the extent that the grounds of appeal seek to raise the matters explained in oral submissions, they clearly contest the findings of fact made by the Tribunal. In a judicial review proceeding it is not open to the Court to rehear the merits of the claims made by the appellant. The basis of the decision of the Tribunal was a careful and reasoned rejection of the credit of the appellant. It follows that the first ground of appeal before this Court which alleges manifest unreasonableness is not made out. Furthermore, the ground was not raised before the federal magistrate. Leave would be required to raise it on appeal, and as it is bound to fail, such leave would be refused.
27. The second ground of appeal before this Court alleges that the federal magistrate dismissed the case without considering the legal and factual errors contained in the decision of the Tribunal. Insofar as factual errors were alleged, the federal magistrate did not have jurisdiction to consider those errors. Fact finding is the function of the Tribunal. Insofar as legal errors were alleged, the federal magistrate considered the alleged errors insofar as they were articulated in the application for review. There is no basis for the suggestion that the federal magistrate failed to consider any of the grounds raised by the appellant.
28. The final ground of appeal raised in this Court, numbered ‘4’ but in fact the third, speaks in general terms of the injustice of the outcome, and does not raise any cognisable ground of appeal.
29. Finally, the appellant indicated that he sought to produce documents before the federal magistrate concerning violence experienced by his wife in India following her return. The material related to incidents which happened after the Tribunal hearing. The federal magistrate rejected those documents and explained at [30] that he informed the appellant that, as the material was not available before the Tribunal, the federal magistrate was unable to take it into account. He indicated that the appellant could take other steps in relation to the material with the department, but concluded that it was not a matter over which the Court has any jurisdiction. The federal magistrate was correct in this view. It follows from these reasons that the appeal must be dismissed.
    

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated: 24 February 2011