SZMVW v Minister for Immigration & Citizenship [2009] FCA 824

FEDERAL COURT OF AUSTRALIA

SZMVW v Minister for Immigration & Citizenship [2009] FCA 824

SZMVW and SZMVX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 317 of 2009

BESANKO J

5 AUGUST 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 317 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMVW

First Appellant

SZMVX

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J

DATE OF ORDER: 5 AUGUST 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellants are to 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. The text of entered orders can be located using eSearch on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 317 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMVW

First Appellant

SZMVX

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J

DATE: 5 AUGUST 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court: SZMVW & Anor v Minister for Immigration and Citizenship & Anor [2009] FMCA 282. On 27 March 2009, the Federal Magistrates Court made an order that the appellants' application for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal") be dismissed. 2 The appellants are citizens of India. They arrived in Australia on 27 February 2008, and they applied for Protection (Class XA) visas ("protection visas") on 7 April 2008. A delegate of the Minister for Immigration and Citizenship refused their applications on 21 May 2008. The appellants applied to the Tribunal for review of the delegate's decisions. The Tribunal handed down its decision on 23 September 2008. The Tribunal decided to affirm the decisions of the delegate not to grant protection visas to the appellants. 3 The first appellant lodged a statement consisting of 29 paragraphs with her application for a protection visa. The Tribunal member set out in her reasons a large part of the statement. It is convenient to summarise the appellants' claims by reference to the statement. 4 The first appellant gives details of her date and place of birth. She states that in India she belonged to a backward community in the state of Kerala and that her religion was "Latin Catholic". She sets out details of her education. She states that, in 1987, her husband became an active member of the Communist Party of India (Marxist) ("CPI(M)"). She states that, since becoming a member, her husband had attended a party class every week at a party member's house and she outlines her husband's involvement in CPI(M) activities. In 1994, the first and second appellants were married. They did not have the support of their respective parents and relatives. The first appellant states that she joined Bible discussion groups and, in 2000, she was appointed a teacher for Sunday Bible classes. She states that, as a result of the fact that she was teaching Bible stories to non-Christian children, she was harassed and her husband was severely assaulted. The BJP party filed a case against her husband, but he fled the country. The first appellant said that she and her children faced harassment because of the action being taken by the BJP party against her husband. The CPI(M) local members would not assist the first appellant because of her religion and her religious teaching "for non-Christians". 5 The first appellant states that, at some stage between June 2007 and November 2007, the CPI(M) approached her husband and asked him for funds to support them. He refused on the ground that they had not supported and protected his wife (that is, the first appellant) and his children. According to the first appellant, the CPI(M) then influenced the police to arrest her husband and "to take harsh approach on my husband's case". The first appellant states that her husband "realised that the State of Kerala police would harm him for political reasons and he would be imputed as a person opponent to the CPI(M) party and the BJP party". 6 The first appellant states that, at the end of December 2007, persons she did not know telephoned and threatened both her and her husband and told them that the first appellant should stop teaching the Bible to non-Christians. The first appellant states that she understood that the "BJP was taking advantage of [her] husband's desertion from the CPI(M) party and CPI(M) was planning to eliminate [her] with their power and position and CPI(M) was influencing the State of Kerala police to punish [her]". 7 After setting out a large part of the statement, the Tribunal member summarised the evidence given by the first appellant at a hearing on 4 August 2008 and the evidence given by both appellants at a hearing on 22 August 2008. 8 The Tribunal member said that she did not find the appellants to be credible on "some key aspects of their claims". The Tribunal member said that she was not satisfied that the appellants left India because of a fear of persecution as described in their application and evidence before the Tribunal. 9 The Tribunal member said that, in essence, the appellants fear persecution because the first appellant was teaching Bible stories to non-Christian children. The Tribunal member said that she accepted that the appellants are Catholics. She said that she accepted that the first appellant held a position as Bible teacher at her local church in Cochin. However, she said that she was not satisfied that the first appellant was teaching Bible stories to non-Christian children at her home as claimed. The Tribunal member said that she was satisfied that the first appellant was teaching non-Christian children school-related subjects such as Malayalam at her home. 10 The Tribunal member set out the matters which led her to conclude that the appellants were not truthful or credible. Those matters were said to be "contradictions, implausibility and inconsistencies" in the evidence and material before the Tribunal. I will not set out the various matters. 11 The Tribunal member said that she was not satisfied that the appellants had suffered persecution at the hands of the BJP, CPI(M) or the police. She said: "The Tribunal is not satisfied that the incidents described by the applicants ever occurred. The Tribunal is not satisfied that the applicant's wife was teaching Bible stories to non-Christian children. The Tribunal is not satisfied that the applicant husband was taken to the police station or that there is any type of summons, warrant or file relating to the incidents described by the applicants. The applicants claimed that they would provide documents in support of their claims, yet to date, no documents have been provided. The Tribunal is prepared to accept that the applicant wife was teaching at the local Catholic church. The accounts from the applicants relating to the most significant event (September 2001) vary dramatically. The Tribunal is not satisfied that any persons are trying to contact the applicants' children in an effort to find the applicants. The Tribunal is not satisfied that the police were intending to arrest the applicants and would have done so, had they not departed India.