SZORZ v Minister for Immigration & Anor [2011] FMCA 100 (23 February 2011)

Federal Magistrates Court of Australia

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SZORZ v Minister for Immigration & Anor [2011] FMCA 100 (23 February 2011)

Last Updated: 8 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZORZ v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 100

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal denied the applicant a full opportunity to put his case, was biased and failed to observe the rules of natural justice in other respects.

Migration Act 1958, ss.422B, 424A, 425, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749

Applicant:

SZORZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2285 of 2010

Judgment of:

Cameron FM

Hearing date:

23 February 2011

Date of Last Submission:

23 February 2011

Delivered at:

Sydney

Delivered on:

23 February 2011

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Clayton Utz

ORDERS

(1) The application be dismissed.
(2) The applicant pay the first respondent’s costs fixed in the amount of $4,275.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2285 of 2010

SZORZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India where, he claims, he was a practising Catholic. He claims that he was involved in the activities of the Kerala Catholic Youth Movement (“KCYM”) and that, as a result, he was targeted by Hindu extremists.
2. The applicant claims to fear persecution in India because of his religion.
3. After his arrival in Australia on 17 February 2010, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 18 May 2010. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
4. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
5. For the reasons which follow, the application will be dismissed.

Background facts

6. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-11 of the Tribunal’s decision.
7. The applicant made the following claims in a statement accompanying his protection visa application:
   1. he came from a Catholic family;
   2. because he was a member of the KCYM, he was accused of trying to convert Hindus to Christianity. Members of the Rashtriya Swayamsevak Sangh (“RSS”), a Hindu extremist group, assaulted him and warned him to stop all church and KCYM activities. The assault caused him lasting mental and physical damage;
   100. he witnessed the “worst violence” when Hindu mobs went on a several day rampage in his home area, burning churches and Christian houses and injuring priests and nuns;
   4. the local authorities were hesitant in taking action against Hindu officials and other Indians who committed human rights abuses against Christians; and
   5. in order to avoid persecution he left India and worked as a chef in different countries. On the occasions when he returned to India, he had to hide and maintain a very low profile. He did not have freedom of movement there.
8. At the Tribunal hearing the applicant made the following additional claims:
   1. he first became involved in the KCYM in 1996 to 1997;
   2. he participated in church-related activities whilst living in India between 2002 and 2004 when he went to Saudi Arabia;
   100. when he returned to Kerala in October 2005, he joined a Catholic organisation called the Devine Retreat Centre. He also worked for the KCYM. His involvement with these organisations continued until June 2006 when he went to Abu Dhabi;
   4. he was employed by a cruise line between June 2008 and his arrival in Australia in February 2010. When he returned to India in-between voyages he would attend and teach Sunday classes. He also worked in KCYM-run welfare groups and prayer groups;
   5. he first had problems as a result of his involvement in the Catholic church in 2002 when he was verbally abused by members of the VHP. They accused him of trying to convert Hindus to Christianity and told him to stop;
   6. Hindu extremists tried to attack him twice in 2002 but were unsuccessful. In the first incident, neighbours intervened and saved him. In the second incident, the extremists used bad words and tried to trouble him but “had not really attacked him”;
   7. there were similar threats in 2003, however, neither the RSS nor the VHP actually succeeded in attacking him; and
   8. in 2003, when Hindu mobs went on a rampage in his area, his prayer group was harassed by Hindu extremists who tried to attack them. The police were alerted and came and dispersed the crowd. He later said that the rampage referred to in his original statement to the department related to a different incident in 2003 involving some political matter and/or a Christian rally outside his locality.
9. After the Tribunal hearing, the applicant submitted a letter from his parish priest and information copied from a decision of the Tribunal, differently constituted, on another review application.

The Tribunal’s decision and reasons

10. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
    1. the Tribunal did not believe that the applicant had been telling it the truth in significant parts of his evidence at the Tribunal hearing and noted that he did not appear to know what was in the statement submitted with his protection visa application. It said that much of the information in the protection visa application concerning his education and employment history was incorrect or incomplete;
    2. the Tribunal did not accept that the applicant was assaulted by members of the RSS in the manner described in his original statement to the department, noting that when describing the problems he had had as a result of his involvement in the Catholic church in India, the applicant’s evidence at the hearing differed from what he had said in his statement accompanying his protection visa application. In this regard, the applicant’s evidence at the hearing was to the effect that although attempts had been made to attack him in 2002 and 2003, neither the RSS nor the VHP had actually succeeded in doing so. However, in his original statement to the department, the applicant claimed that he had been assaulted by members of the RSS and that “blood had been gushing from his nose and mouth and that he had been dashed to the ground and kicked”;
    100. the Tribunal did not accept, as claimed in his original statement, that the applicant witnessed violence against Christians during a rampage by Hindu mobs in his area, noting that:
         1. the applicant’s reference to this incident at the Tribunal hearing, namely that his prayer group was stopped by Hindu extremists who tried to attack them, bore no relation to the claims made in his statement, and
         2. the Tribunal considered that such an incident would have been reported had it occurred, but could find no reference to this event in the independent evidence;
    4. the Tribunal accepted that the applicant had been active in the Catholic church and in the KCYM, that there were two incidents in 2002 in which extremists tried to attack him without success, that in 2003 his prayer group was stopped by Hindu extremists who tried to attack them, and that on occasion people from the VHP or other Hindu extremist groups verbally abused him and/or made threats. However, the Tribunal did not accept that there was a real threat to the applicant’s life or safety as he claimed noting in this connection that:
       1. abusive words or even threats will not generally amount to persecution for the purposes of the Convention unless there is a real chance that the threats will be carried out;
       2. the applicant’s evidence did not suggest that he was prevented from carrying on his Christian activities in any way. For instance, despite the incidents in 2002 the applicant continued to live at his home until 2004 when he went to Saudi Arabia, during which time he participated in church-related activities. When he returned to Kerala from Saudi Arabia in 2005 he became involved in the Divine Retreat Centre and continued to work for the KCYM, and when he returned to India between voyages on board ship between 2008 and 2010 he taught in Sunday school classes and was involved in prayer groups which also engaged in Christian welfare activities; and
       3. the applicant’s ability to carry on his Christian activities was consistent with the independent evidence which indicated that the Christian community in Kerala is relatively safer than in other Indian states. The independent evidence also indicated that Hindu extremist groups posed no serious threat to the religious freedom of Christians in Kerala and that the police had been effective in tackling the isolated instances of violence against Christians throughout the state. Having regard to this evidence, the Tribunal did not accept that there was any failure on the part of the authorities in Kerala to meet international standards of protection.

Proceedings in this Court

11. The grounds of the application commencing these proceedings were pleaded as follows:
    • 1. Jurisdictional error.

2. Breach of procedural fairness.
3. Breach of natural justice.

Ground 1

12. The first allegation appearing in the application is unparticularised and as a result lacks substantive content. Apart from the matters alleged in its second and third grounds, the application does not identify in what way the Tribunal’s decision might be affected by jurisdictional error. However, in his oral submissions the applicant argued that the Tribunal had erred because it did not take his evidence seriously, because he was unable to access effective state protection in Kerala and because the Tribunal denied him an opportunity to put additional material before it.
13. The submission that the Tribunal did not take the applicant’s evidence seriously can be understood to be an allegation of bias and this will be considered in the context of the second and third grounds set out in the application. The allegation that the applicant could not obtain effective state protection raises a question of fact which was considered by the Tribunal and in respect of which it made a finding. Subject to the matters which will be considered in relation to the second and third grounds of the application, this assertion does not disclose jurisdictional error because the Tribunal’s finding was open to it on the evidence and as such is not reviewable by the Court in these judicial review proceedings.
14. However, the allegation that the Tribunal denied the applicant an opportunity to put further information before it raises a matter of greater substance. Paragraph 45 of the Tribunal’s decision records that the applicant requested time to produce documents in support of his case and [46] and [47] disclose the reasons why the Tribunal, in substance, refused to adjourn the hearing or to delay making its decision by reason of the applicant’s request for more time.
15. At [25] and [33] of its decision, the Tribunal records that the applicant told it that he could get a letter from his parish priest, Father Vazhappilly. In his oral submissions to the Court, the applicant said that his priest had been unavailable at the relevant time. At [46] of its decision, the Tribunal recorded that the applicant had said that Father Vazhappilly could give a proper description of “the incidents” but went on to say that, in its view, the applicant was better placed than his priest to do that and, in any event, it accepted that the applicant was involved in the church and the KCYM and so did not need a letter from the priest. The applicant’s request for time to seek advice on his application for protection was refused on the basis that he had already had ample time to seek such advice.
16. It is not apparent from the reasons which the Tribunal expressed for declining to delay its decision that its discretion in this regard miscarried, but in any case, after the Tribunal hearing the applicant did submit a letter from Father Vazhappilly confirming the applicant’s involvement in the church and Catholic youth activities and the Tribunal referred to this in its decision record. The applicant submitted to the Court that this letter did not contain “full details” but, in effect, conceded that he did not tell the Tribunal after the hearing that he wanted to submit information in addition to what he had provided at the time of sending Father Vazhappilly’s letter. In the absence of such a request, the Tribunal cannot be found to have erred by proceeding to make a decision without affording the applicant time to put those “full details” before it.

Grounds 2 and 3

17. The second and third grounds of the application are, in substance, one ground, as procedural fairness and natural justice are just different terms for the same thing. Nevertheless, it is convenient because of the way that s.422B of the Act is drawn that the relevant obligations be described in these reasons as the rules of natural justice.
18. The rules of natural justice comprise the bias rule and the hearing rule. In his submissions at the hearing in this case, the applicant raised, albeit obliquely, an allegation of bias on the part of the Tribunal when he submitted that the Tribunal did not take his evidence seriously. A consideration of the Tribunal’s decision, which is the only evidence available to the Court on this question, does not bear out this allegation. Nothing in that decision record would support a conclusion that the Tribunal was so committed to a conclusion that its mind was incapable of alteration: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. It is possible that this submission is, alternatively, an allegation of a lack of good faith on the Tribunal’s part. However, on the application of the relevant principles as discussed in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, the Tribunal’s decision record does not support a conclusion that such a finding should be made.
19. As to the natural justice hearing rule, this is codified for the purposes of the Tribunal’s reviews by s.422B of the Act in those provisions found in div.4 of pt.7 of the Act. The most important of those provisions are ss.424A and 425. In this case, no obligations arose under s.424A because the information relied on by the Tribunal in reaching its decision was information which the applicant had supplied in writing to the Minister’s department or to the Tribunal for the purposes of its review or independent country information to which the Tribunal had access. Such information falls within the exceptions to the operation of s.424A(1) found in s.424A(3). As to s.425, the Tribunal invited the applicant to a hearing which he attended. It is also apparent from its decision record that the Tribunal raised with the applicant issues arising in relation to the decision under review, such that he was clearly on notice of issues which were ultimately determinative of his review before the Tribunal. As to the remaining provisions of div.4 of pt.7, the applicant did not point to any which the Tribunal had failed to observe or apply, and it is not apparent that it did fail to observe or comply with them to the extent that they were relevant to the applicant’s review.

Conclusion

20. In this proceeding, jurisdictional error on the part of the Tribunal has not been demonstrated.
21. Consequently, the application will be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date: 7 March 2011