SZLUC v Minister for Immigration and Citizenship [2008] FCA 1319

FEDERAL COURT OF AUSTRALIA

SZLUC v Minister for Immigration and Citizenship [2008] FCA 1319

SZLUC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 769 of 2008

STONE J

26 AUGUST 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 769 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLUC

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: STONE J

DATE OF ORDER: 26 AUGUST 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. 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 769 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLUC

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: STONE J

DATE: 26 AUGUST 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of India who arrived in Australia on 11 May 2007. On 14 May 2007 he 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 2 July 2007. On 23 July 2007 the appellant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal on 27 November 2007 affirmed the decision of the delegate to so refuse. The appellant applied to the Federal Magistrates Court for judicial review of the Tribunal's decision. Federal Magistrate Scarlett dismissed the application on 8 May 2008, which is the decision from which he now appeals to this Court. 2 The appellant claimed to fear persecution in India because of his political opinion and his religion. He said he was born into an orthodox Hindu family. From 2004 he was actively involved with radical Hindu movements and organisations that had a goal of making India a Hindu state "by any means". They included the Rashtriya Swayamsevak Sangh (RSS), which nominated the appellant "to disrupt a miracle crusade held by the Indian Pentecost Mission". As a result of his interaction with the Pentecost Mission the appellant became involved with Christianity. At the end of 2005 he ceased his involvement with the Hindu movement and joined the Pentecost Mission. As a result he claimed to have suffered physical violence and threats from members of Hindu organisations, particularly former colleagues from the RSS. He claimed there was an attack on 14 September 2006 in which members of the RSS pulled him out of his car and hit him with an iron bar. He asserted that he would be "traced" by them if he returns to India, and that he cannot obtain protection against harm from them. 3 The Tribunal did not accept the appellant's account of his activities as a member of a Hindu organisation, his subsequent conversion to Christianity or his claim that he had been attacked and/or threatened by members of Hindu organisations. The Tribunal made an adverse credibility finding against the appellant on the basis of several evidentiary factors discussed with the appellant at the hearing on 20 September 2007: · the fact that the appellant and his family had remained resident in the same place throughout the period in which he was allegedly sought by his Hindu opponents, and had been unable to provide a satisfactory explanation for why this was so; · the appellant's minimal knowledge of Christianity when questioned by the Tribunal; and · in view of country information regarding widespread document fraud in India, the likelihood that documents submitted by the appellant (a hospital report, a police report and a letter allegedly from the Pentecostal Mission) were forged. The fact that the appellant had failed to present these documents when initially making his application despite their apparent importance was a contributing factor. 4 The Tribunal concluded by stating that there was no plausible evidence before it to demonstrate that the appellant had been persecuted by reason of religion, political opinion or any other basis in India, or that there was a risk of this occurring in the reasonably foreseeable future. As such, the Tribunal did not accept that the appellant held a well-founded fear of Convention-related persecution in India.