SZMYX v Minister for Immigration and Citizenship [2009] FCA 835

FEDERAL COURT OF AUSTRALIA

SZMYX v Minister for Immigration and Citizenship [2009] FCA 835

SZMYX and SZMYY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 377 of 2009

BESANKO J

6 AUGUST 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 377 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMYX

First Appellant

SZMYY

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J

DATE OF ORDER: 6 AUGUST 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellants 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 377 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMYX

First Appellant

SZMYY

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J

DATE: 6 AUGUST 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court: SZMYX and Anor v Minister for Immigration and Citizenship [2009] FMCA 306. On 15 April 2009, that Court dismissed an application by the appellants for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal"). 2 The appellants are husband and wife and both are citizens of India. They arrived in Australia on 23 April 2008. They made applications for Protection (Class XA) visas ("protection visas") on 22 May 2008. The first appellant made her application on the basis that she fell within the definition of a refugee and the second appellant made his claim on the basis that he was a member of a family unit. A delegate for the Minister for Immigration and Citizenship refused the applications on 21 June 2008. The appellants made an application to the Tribunal for review. On 15 October 2008, the Tribunal made decisions not to grant protection visas to the appellants. 3 On 25 November 2008, the appellants made an application to the Federal Magistrates Court for constitutional writs directed to the Tribunal. The application was amended on 16 February 2009. As I have said, the Federal Magistrates Court made an order on 15 April 2009 that the application be dismissed. 4 The first appellant lodged a statement consisting of 19 paragraphs with her application for a protection visa. The statement was referred to by the Tribunal member in his reasons. It is convenient to refer to it because it provides a summary of the first appellant's claims. 5 The first appellant states that she was born on 25 May 1971 in a place (which it is not necessary to identify) in the State of Kerala in South India. In 1972, her family moved to a place (again, which it is not necessary to identify) in Trufandrum. The appellant states that she belongs to the Christian Other Backward Community in Kerala. She states that this caste is considered as Other Backward Community (OBC) in the State of Kerala in India and that she faces discrimination in her education and social life due to her caste. In her statement, the appellant gives details of her education. 6 In 1986, the appellant became an active member of the Student Federation of India (SFI), which she states is the student political wing of the Communist Party of India (CPI(M)). She was involved in the political activities of the SFI. There was disagreement between her student wing and the student wing of the Indian National Conference, namely, the Kerala Student Union and that disagreement led to confrontations, including physical assaults, from time to time. 7 The first appellant states that in 1990, violence between Christians and Muslims was escalating and, at about this time, her parents were assaulted by Muslim armed thugs. She states that from 1990 to 2002 she faced discrimination and "harassments" by the Muslims in her village and the "harassments" included verbal abuse by the Muslim thugs. She states that, in 2002, she and other women were sexually harassed by Muslim thugs in a public place. She states that she has continued to be harassed and that her house was burnt by Muslim thugs. She sought assistance from her political party, but they did not give her support. She received assistance from the National Congress Party. She states that, in early 2006, she refused to assist the CPI(M) in its political activities and she supported the Congress Party. Since she did that she claims that she has been badly treated by the CPI(M). She has been verbally assaulted and assaulted with a wooden stick. She has complained to police, but with no success. She claims that she has a political profile and that she faces significant economic hardships and mistreatment by the CPI(M) due to her religion and political profile. 8 The Tribunal member examined what he described as the appellant's main claim, namely, that she had a well-founded fear of persecution for reasons of political opinion. The Tribunal member referred to the first appellant's evidence and he noted a number of contradictions in her evidence. He was not satisfied as to a number of matters, but it is not necessary to set them all out. A significant finding was that he did not accept the first appellant's evidence that she was involved in the 2006 elections as an active supporter of the Congress Party and, therefore, he did not accept that she was adversely regarded by members of the CPI(M). The Tribunal member rejected the first appellant's claim in so far as she alleged that she had a well-founded fear of persecution for reasons of political opinion. 9 The Tribunal member examined the first appellant's claim to have a well-founded fear of persecution for reasons of religion. The Tribunal member accepted that the appellant is a Christian and, as he put it, a Roman Catholic in particular. The Tribunal member noted inconsistencies in the first appellant's evidence as to an alleged assault on her parents. He was not satisfied that there was any such attack on the first appellant's parents. He concluded that the alleged incident involving sexual harassment did not occur, given the lack of corroboration and the conflict in the first appellant's evidence. He said that any disputes between Christians and Muslims related to fishing rights, not religion. The Tribunal member expressed his conclusion as follows: "Given the Tribunal's findings above concerning the claims she has made about her fears regarding Muslims, the lack of any claim of past harm for reasons of religion at the hands of Hindus, the relatively 'sporadic' nature of anti Christian activity in Kerala, the lack of any evidence to suggest the applicant has a particular leadership profile as a Christian, and the overall number of Christians in Kerala, the Tribunal finds that the risk of the applicant facing harm for reasons of religion in Kerala is so small as to be negligible." 10 The Tribunal member considered the first appellant's claim to have a well-founded fear of persecution by reason of her membership of a group comprising "backward caste persons". He concluded that "she would not face discrimination sufficiently serious to constitute 'serious harm' because she is a member of an OBC, if she were to return to India in the reasonably foreseeable future". 11 On the application to the Federal Magistrates Court for constitutional writs, the federal magistrate considered complaints by the first appellant that: 1. The Tribunal had acted in breach of s 424A of the Migration Act 1958 (Cth) ("the Act"); 2. The Tribunal had misapplied s 91R(2A) of the Act with reference to the issue of relocation "in India"; and 3. The Tribunal had misused country information. 12 The federal magistrate also considered miscellaneous complaints made by the first appellant. I will discuss the federal magistrate's reasons in the course of my discussion of the grounds of appeal to this Court. 13 The notice of appeal contains four grounds of appeal. The first two grounds of appeal are similar and may be dealt with together. It is alleged by the first appellant that the Tribunal acted in breach of s 424A of the Act. The Tribunal conducted a hearing in relation to the review on 21 July 2008. The first appellant attended the hearing and gave evidence. The second appellant did not attend the hearing. On 6 October 2008, the first appellant wrote to the Tribunal in the following terms: "I refer to my hearing held and kindly request you to take into account the current violation against Christian minority in India.