SZOLO v Minister for Immigration and Citizenship [2011] FCA 84 (10 February 2011)

Last Updated: 11 February 2011

FEDERAL COURT OF AUSTRALIA

SZOLO v Minister for Immigration and Citizenship [2011] FCA 84

Citation:		SZOLO v Minister for Immigration and Citizenship [2011] FCA 84
Appeal from:		SZOLO v Minister for Immigration & Anor [2010] FMCA 740
Parties:		SZOLO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1369 of 2010
Judge:		COLLIER J
Date of judgment:		10 February 2011
Date of hearing:	9 February 2011
Place:	Brisbane (Heard in Sydney)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	28
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Mr D Tynan
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1369 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COLLIER J
DATE OF ORDER:	10 FEBRUARY 2011
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1369 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COLLIER J
DATE:	10 FEBRUARY 2011
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal against the decision of Cameron FM delivered on 1 October 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 13 May 2010. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND

2. The appellant is a citizen of India who arrived in Australia on 15 July 2009. On 26 August 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 1 December 2009. On 23 December 2009 the appellant applied to the Tribunal for a review of that decision.
3. In his protection visa application, the appellant claimed that he faced persecution in his country, as he converted to Christianity. He claimed that he came from Kerala, and was from a strict Muslim family. He claimed that while he was growing up, his childhood friend and neighbour, “JM”, introduced him to Christianity. The appellant claimed that while he was in college, he spent time with JM learning about Christianity and attended prayer meetings in St George Church. He claimed that his family and community did not consent to this and his family forced him to keep his distance from JM. Despite this, he claimed that when the opportunity presented itself, he continued to meet with JM and learnt more about Christianity. He claimed that when his family found out about this, his elder brother hit him with a belt. The appellant claimed he was forced to undertake continuous classes with the Mosque committee to change his mind, but he did not change his mind. The appellant also claimed that in March 2008, he travelled to Goa to attend a meeting and to find peace, but that the National Democratic Front (“NDF”), a Muslim terrorist group, captured him, and sent him back to Kerala and threatened him with death should he call the police. He said that when he arrived in Kerala, they kidnapped and tortured him.
4. The appellant claimed that his friend’s father then talked to him and told him that if he was keen in accepting Christ, then he should apply for a student visa to come to Australia. The appellant claimed that for the next six months, he followed what his family said and followed their Muslim beliefs so that he could secure a student visa and come to Australia to receive protection. After arriving in Australia, the appellant claimed that he became “totally obsessed” with the idea of converting to Christianity.

REFUGEE REVIEW TRIBUNAL

5. The appellant appeared before the Tribunal on 9 April 2010 to give evidence and present arguments. After discussing the claims made by the appellant and the evidence before it, the Tribunal found it was not satisfied that the appellant was a person to whom Australia owed protection obligations.
6. The Tribunal did not find the appellant to be a credible witness. The Tribunal considered that if he had studied Christianity and the Bible four or five times a month in India since he was 15 years old, began following the Christian religion when he was 16 years old and regularly attended church in India since college (until March 2008), then it expected he should have been able to provide more confident and detailed evidence about these matters. Furthermore, the Tribunal found it unsatisfactory that the appellant did not mention in his written statement, “Anthony”, being the person whom he claimed was a Bible expert, and who taught him about Christianity alongside JM every month for a number of years.
7. The Tribunal also noted that in his oral evidence, the appellant claimed to have regularly attended St Mary’s and St Peter’s churches in India and also attended the famous St George church. In this regard, the Tribunal did not accept his explanation as to why no mention of his regular attendance at St Mary’s and St Peter’s church was made in his original application. In particular, the Tribunal did not accept there was an error in the translation provided when the statement was prepared, as the statement did not just fail to mention the names of the two churches but failed to give any indication that the appellant regularly attended church as he claimed at the hearing. The Tribunal further noted that the appellant claimed to have studied English at university and stated in his application that he could read English. Therefore the Tribunal did not accept that the appellant would have simply relied on another person to prepare his statement and failed to check the accuracy of the statement. The Tribunal considered the claim that he regularly attended St Mary’s and St Peter’s church was a recent invention to strengthen his claim that he became a Christian in India.
8. The Tribunal also considered independent country information about Kerala, and noted that St Thomas was a significant figure for Christians of Kerala because it is believed that he established Christianity in that state. However, the appellant was not able to provide any information further than identifying him as a prophet.
9. On the basis of the above, the Tribunal did not accept the appellant became a Christian in India, did not learn or study Christianity or the Bible and did not attend church there. Therefore, the Tribunal did not accept any further claims that stemmed from those rejected claims. In making this finding, the Tribunal considered the letter from the Muslim Committee but, given its adverse credibility findings against the appellant, and the prevalence of document fraud in India, it did not accept the letter was genuine.
10. The Tribunal also had regard to photographs of scars, marks and bruises which the appellant claimed were sustained by him as a result of his religious activities. However the Tribunal considered the photographs did not prove how the injuries were sustained.
11. The Tribunal also had regard to the assessment from STARTTS, an organisation described as being a service for the treatment and rehabilitation of torture and trauma survivors. That assessment, dated 8 October 2009, provided (inter alia):

...I conducted an assessment on 08/10/09 which revealed that [the appellant] is experiencing symptoms of Post Traumatic Stress Disorder. Symptoms reported include disturbed sleep and nightmares, panic-like reactions to reminders of the past, avoidance of such reminders, headaches, fatigue, and difficulties with concentration and memory.

As a consequence of this symptomatic presentation, [the appellant] is currently not capable of undertaking paid employment. He is therefore in need of any possible financial assistance which can be provided.

12. However, it was noted that the assessment was conducted six months before the Tribunal hearing and was based on one consultation with the appellant and on symptoms reported by the appellant. The Tribunal noted there was no recent medical evidence to indicate that his ability to give evidence and present arguments at the hearing was negatively affected.
13. The Tribunal accepted the appellant was involved in various Christian activities in Australia. However, given its finding that the appellant was not credible, and did not become a Christian in India, it found he was engaged in that conduct for the purpose of strengthening his claim as a refugee. Therefore the Tribunal disregarded this evidence in accordance with s 91R(3) of the Migration Act 1958 (Cth) (“the Act”).
14. For these reasons the Tribunal affirmed the decision of the delegate.

FEDERAL MAGISTRATES COURT

15. On 4 June 2010 the appellant filed an application for judicial review of the Tribunal’s decision. In an amended application filed on 6 August 2010, the appellant claimed the following:
    1. The Tribunal fell into jurisdictional error in that it did not consider all of the appellant’s claims.
       

Particulars: The Tribunal did not deal with the appellant’s claim that he could not safely relocate to another party of India.

2. The Tribunal fell into jurisdictional error by misinforming itself as to the true nature of the appellant’s evidence and thereby incorrectly dealt with that evidence.
   

Particulars: The letter for STARTTS dated 8 October 2009 was evidence that the appellant was suffering from Post Traumatic Stress Disorder. The Tribunal dealt with this evidence as being relevant to the appellant’s ability to give evidence at the hearing whereas its true significance is that it was evidence that the appellant had suffered persecution.

16. In his affidavit affirmed on 24 August 2010, the appellant also raised the following grounds:
    3. The Tribunal member affirmed the delegate’s decision without considering properly the test whether he would suffer serious harm pursuant to s 91R(2)(a) of the Act; and
       
    4. The Tribunal misunderstood the appellant’s evidence before the Minister’s delegate because at the departmental interview the interpreter made a mistake leading to the Tribunal misunderstanding what the appellant had said at the interview.
       
17. In respect of ground 1, the Federal Magistrate held that as the Tribunal had found that the appellant had no well-founded fear of persecution in India, it was not necessary that it consider whether or not the appellant could relocate to another part of India.
18. In relation to the STARTTS report, the Federal Magistrate first noted that even though the Tribunal did not refer to the report as a piece of evidence which corroborated his claimed persecution in its reasons, this did not cause it to fall into jurisdictional error. Relevantly, the Federal Magistrate noted that s 430 of the Act only obliges the Tribunal to refer in its reasons to the evidence upon which it makes factual findings which are, in turn, the foundation of its ultimate decision (see also Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 at 641; Ex parte Durairajasingham [2000] HCA 1; [2000] 168 ALR 407 at 423). Furthermore, having regard to the decision in Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485, the Federal Magistrate held that it was acceptable for the Tribunal to proceed by first making an assessment of the appellant’s credibility and then giving attention to the corroborative evidence. As the Tribunal had made an adverse finding in relation to the appellant’s credibility, it was entitled to conclude that the STARTTS report was to be given no weight on the appellant’s essential claims. The Federal Magistrate inferred that the Tribunal placed no weight on the report, and therefore, it did not need to be referred to in the Tribunal’s reasons in connection with the issue of harm the appellant claimed to have suffered in India.
19. The Federal Magistrate rejected ground 3, as a fair reading of the Tribunal decision made it clear that the Tribunal did consider whether the appellant might suffer harm were he to return to India.
20. The Federal Magistrate also rejected the appellant’s claims regarding the incorrect translation at the departmental interview. This was because, at the Tribunal hearing, the appellant was afforded with the opportunity to clarify his claims or raise any issues about the interpreter. The appellant also made a claim orally at the hearing, that the Tribunal incorrectly recorded statements made by himself and his translator. However the Federal Magistrate found that this inaccuracy, even if true, did not affect the substance of the Tribunal’s decision.
21. Having found that the Tribunal decision was not affected by jurisdictional error, his Honour dismissed the application for review.

APPEAL TO THIS COURT

22. By Notice of Appeal filed on 18 October 2010, the appellant raised the following grounds of appeal against the decision of Cameron FM:
    1. The Federal Magistrate ignored my ground of appeal that the Tribunal fell into jurisdictional error by misinforming itself as to the true nature of the appellant’s evidence and thereby incorrectly dealt with the evidence.
       

Particulars:

The letter from STARTTS dated 8 October 2009 was evidence that the appellant was suffering from Post Traumatic Stress disorder. The Tribunal dealt with the evidence as being relevant to the appellant’s ability to give evidence at the hearing whereas its true significance is that it was evidence that the appellant had suffered from persecution.

2. The Federal Magistrate failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the appellant’s claims and ignoring the aspect of persecution and harm in terms of s 91R of the Act. The Tribunal failed to observe this obligation amounted to a breach of a statutory obligation.
   

CONSIDERATION

23. At the hearing of the appeal before me the appellant was self-represented. The Minister was represented by Counsel.
24. The appellant filed no written submissions, but made oral submissions which may be summarised as follows:
    • the Tribunal did not properly consider the STARTTS letter;
    • the Tribunal had not given adequate consideration to his mental state;
    • the Tribunal had improperly given weight to the evidence before it;
    • he had answered the Tribunal’s questions to the extent that he could. The Tribunal had, in substance, found against him only because of his answers in relation to St Thomas.
25. In relation to the first ground of appeal, I note that this ground was raised before the Federal Magistrate and dismissed.
26. In the circumstances I am unable to identify the manner in which the Tribunal misinformed itself of the true nature of the appellant’s evidence, specifically the STARTTS letter. It is clear from the reasons of the Tribunal that the Tribunal did have regard to the STARTTS letter, which states clearly that, in the opinion of the writer, the appellant suffered from post-traumatic stress disorder. The letter is not, however, conclusive proof that the appellant had been persecuted within the meaning of the Refugees Convention, a legal issue requiring decision by the Tribunal. The weight given to the STARTTS letter, and indeed all evidence before the Tribunal, was a matter for the Tribunal. I am not satisfied that the Tribunal failed to take into account evidence given by the appellant, including his claims concerning his mental state. I am unable to identify any error in the approach of the Tribunal, or that of the detailed consideration by the Federal Magistrate in reviewing the Tribunal’s decision.
27. In relation to the second ground of appeal, I note that the issue of whether the Tribunal had or had not acted unreasonably was not raised before the Federal Magistrate below. Accordingly nothing can turn on the failure of the Federal Magistrate to deal with such a claim. Further, in my view there is no proper basis to assert that either the decision of the Tribunal or, in turn, the judgment of the Federal Magistrate, was so unreasonable that no reasonable person could have come to it in terms of the test articulated in Associated Provincial Picture House v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. A disagreement by a party to litigation with a decision in a case does not necessarily mean that the decision was “unreasonable”.
28. In my view the appeal should be dismissed with costs.
    

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated: 10 February 2011