MZZCH v Minister for Immigration
[2013] FCCA 1424
•3 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZCH v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1424 |
| Catchwords: MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) Subclass 866 visa – Applicant’s claim to be homosexual found by the Refugee Review Tribunal not credible – no failure to make an obvious inquiry about a critical fact – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa) 1967 Protocol Relating to the Status of Refugees |
| Australian Broadcasting Tribunal v Bond(1990) 94 ALR 11 SZIEW v Minister for Immigration and Citizenship [2008] FCA 522 |
| Applicant: | MZZCH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1410 of 2012 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 8 August 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 3 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Burt |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the Respondents: | Ms Hoult |
| Solicitors for the Respondents: | Clayton Utz |
THE COURT ORDERS THAT:
The name of the First Respondent be changed to ‘Minister for Immigration and Border Protection’.
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1410 of 2012
| MZZCH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By Application filed 7 November 2012 and Amended Application filed 15 July 2013, the Applicant seeks judicial review of a decision of the Second Respondent (‘the Tribunal’) made 2 October 2012 affirming a decision of a delegate of the First Respondent (‘the delegate’) refusing an application for a Protection (Class XA) Subclass 866 visa.
The grounds of the Amended Application filed 15 July 2013 are as follows:-
“1. The decision of the Tribunal was made without jurisdiction or was affected by an error of jurisdiction in that the Tribunal asked itself the wrong question and/or misunderstood its function and/or made findings without evidence.
Particulars
(a) The applicant claimed to be at risk of persecution upon return to Lebanon because of his identity and status as a homosexual man.
(b) The Tribunal did not accept that the applicant was homosexual for several cumulative reasons.
(c) The reasons included a finding that the applicant had failed to “live in Australia as a gay man.”
(d) There was no evidence before the Tribunal to support or establish what it was to live in Australia as a gay man and to therefore support that the applicant had failed to do so.
(e) In addition, or in the alternative, the Tribunal’s assessments of the applicant’s sexuality demonstrates that it asked itself the wrong questions and/ or misconceived its function.
2. The decision of the Tribunal was made without jurisdiction or was affected by an error of jurisdiction in that the Tribunal misunderstood its function and/or denied the applicant a fair hearing in its assessment of corroborative evidence.
Particulars
(a) The applicant provided evidence to the Tribunal of SMS messages between himself and the man whom he claimed to have had an intimate relationship with.
(b) The Tribunal considered the evidence as “particularly unpersuasive” as there was “nothing to identify the source of the message other than the sender’s name.”
(c) The messages were a critical piece of corroborative evidence and there was no proper basis for the Tribunal to dismiss the evidence as “unpersuasive”.
(d) The Tribunal’s assessment of the evidence and its basis for rejecting it supports that it misconstrued its function and/or denied the applicant a fair hearing.
3. The Tribunal committed an error of law by failing to make an obvious inquiry about a critical fact.
Particulars
(a) The Tribunal undertook an assessment of whether the applicant had lived in Australia “as a gay man.”
(b) The Tribunal found that the applicant had not done so.
(c) The Tribunal had evidence before it in the form of a statutory declaration from his aunt, attesting to her knowledge of the applicant’s homosexuality.
(d) The Tribunal gave the evidence little weight given its assessment that it was limited and there was nothing to suggest she had “first hand knowledge” of the applicant’s situation or homosexuality.
(e) The aunt was present at the hearing and attempted unsuccessfully to intervene at times when the applicant was being questioned about his homosexuality and "”everyday life”.
(f) In the circumstances of this case and given the importance placed on whether the applicant had lived as a gay man in Australia, the Tribunal committed an error of law by failing to receive evidence from the aunt as to the applicant's disclosures, her knowledge and matters relevant to his lifestyle in Australia.”
There is before the Court in evidence a Court Book filed by the First Respondent on 11 February 2013 and a Transcript of the proceedings before the Tribunal as annexed to the Affidavit of Ms Sanmati Verma, Solicitor, sworn 5 August 2013 and filed on behalf of the Applicant. There are also written submissions filed on behalf of the parties.
Background
The Applicant arrived in Australia on 24 December 2011, travelling on a Lebanese passport. He was the holder of a sponsored family visitor visa.
On 27 January 2012, the Applicant filed an application with the Department of Immigration and Citizenship (as it then was) (‘the Department’) for a Protection (Class XA) Subclass 866 visa.
On 7 February 2012, a delegate of the Minister of Immigration and Citizenship (as he then was) invited the Applicant to attend an interview on 7 March 2012 in relation to his visa application.
On 13 March 2012, the delegate made a decision to refuse to grant a Protection (Class XA) Subclass 866 visa to the Applicant. The decision was made on the basis that the delegate was not satisfied that Applicant was a non-citizen in Australia to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Refugees Convention’). The Applicant was notified of the delegate's decision under cover of a letter of the same date.
On 13 April 2012, the Applicant applied to the Tribunal for merits review of the delegate's decision. On 6 July 2012, the Tribunal invited the Applicant to appear before the Tribunal on 2 August 2012. On 10 July 2012, the Applicant's migration agent requested an adjournment of the hearing and on 18 July 2012, the Tribunal invited the Applicant to appear before it on 29 August 2012.
The Applicant attended the hearing before the Tribunal on 29 August 2012 with his migration agent and aunt, and with the assistance of an interpreter, the Applicant gave evidence in support of the application. At the hearing the Applicant provided the Tribunal with further written submissions and documents in support of his application. On 10 September 2012, the Tribunal received further documents from the Applicant in support of his application.
On 2 October 2012, the Tribunal made a decision affirming the delegate's decision under review. The Tribunal sent the decision to the Applicant, by registered post under cover of a letter dated 3 October 2012. The Applicant made application to this Court.
The Applicant’s claims
These are as set out in the Applicant’s Contentions of Fact and Law filed 15 July 2013 at paragraphs 8 to 21 as follows:-
a)The Applicant was from Bekrkacha Lebanon and of Christian religion.
b)The Applicant first arrived in Australia on a sponsored family visitor visa on 24 December 2011. The Applicant had been sponsored once previously in 2010.
c)The Applicant’s claims for protection centred around his identity and status as a homosexual man in Lebanon.
d)Available country information supported that homosexuals were discriminated against and at risk of serious harm and criminal prosecution in Lebanon.
e)The Applicant gave evidence at the Tribunal hearing that he considered himself gay and that he realised he was gay when he was first with a man named Toufik
f)The Applicant was about 21 years of age at the time. He first met Toufik at a nightclub and they had their first sexual encounter about one month after they met in around July 2009.
g)The Applicant and Toufik were discrete in their relationship and nobody in Lebanon at the time knew that the Applicant was gay.
h)The Applicant indicated that he could provide to the Tribunal messages between himself and Toufik and subsequently did so in the form of SMS messages forwarded to the Tribunal after the hearing.
i)The Applicant subsequently met a man by the name of Sharbil who was a friend of Toufik's. The Applicant commenced a relationship, also discrete, with Sharbil which last approximately 18 months.
j)The Applicant gave evidence that he had had no relationships since arriving in Australia.
k)The Applicant gave evidence that he worked at the police as a station guard after leaving school in 2007. On one occasion, at work, he was talking to Toufik when another policeman (Shafik) overheard him. The Applicant was unaware that anybody else was present at the time as they were talking in a cubicle.
l)The policeman confronted the Applicant and threatened him and from that day on the Applicant paid the officer extortion money.
m)Since arriving in Australia, the Applicant had confided in his aunt and uncle about his sexuality.
n)Everybody in Lebanon now knew that the Applicant was gay and the Applicant believed that the policeman had told everybody. The Applicant had since received a threatening text message from his father.
These claims were also summarised by the Tribunal in its Decision Record dated 2 October 2012 (‘the Decision Record’) at paragraph 57 which is as follows:-
“57. The Tribunal explored the applicant’s claims at length during the hearing and he was asked repeatedly whether he had anything further to add. In summary, the applicant claims that, while he has had relations with women in the past, he is homosexual and that he faces a real risk of being persecuted or suffering serious harm if he returns to Lebanon for reasons of his sexuality. He claims that he was blackmailed in the past, and now that his homosexuality is generally known, he will face punishment, bullying, harassment and mistreatment by his family, the authorities and society in general. Although not separately raised by the applicant, the declaration by the applicant’s uncle also mentions the expectation on the applicant to marry a woman. The Tribunal considers the prospect of marriage interrelated with his claimed sexuality, his ability to live freely as a homosexual and his fear of being harassed or otherwise mistreated by his family.”
The Tribunal’s Findings
The Tribunal accepted that the Applicant was a citizen of Lebanon. The Tribunal did not accept that the Applicant was homosexual.
The Tribunal found at paragraph 58 of its Decision Record that the Applicant's evidence regarding his homosexual experiences were “vague and lacking in detail in a number of significant respects”. It did not accept that the Applicant's fear explained his vagueness.
At paragraph 59 of its Decision Record, the Tribunal found that the Applicant's explanation of what he did when he realised that he was homosexual was “simplistic”. He did not “articulate any emotional aspect of discovering his homosexuality or provide any meaningful insight regarding the impact on his life”. The Tribunal also did not accept that the Applicant's “failure to live in Australia as a gay man was due to his lack of English and a car”, especially as his family in Australia knew that he was homosexual and supported him, and in circumstances where he did not have a car in Lebanon but claimed to have been able to maintain homosexual relationships there. It said “ … it seems illogical that he has not made any connections or lived openly as a gay man in the 21 months since he arrived in Australia.”
The Tribunal found that the Applicant's actions, namely, his return to Lebanon in June 2010 for six months without suffering any problems in relation to his homosexuality and the timing of the lodging of his protection visa application immediately prior to the expiry of his visitor's visa, were inconsistent with his claims that he had been blackmailed from August or September 2009, and that the blackmailer could have revealed his sexuality and exposed him to harm. The Tribunal also found that the Applicant's evidence that his family in Lebanon was ignorant, until recently, of his homosexuality, was “surprising and somewhat convenient”.
The Tribunal gave little weight to the statutory declarations of Mr and Mrs Daher (the Applicant’s uncle and aunt) as their knowledge of the Applicant's sexuality only came from the Applicant telling them that he was homosexual, and that he visited a gay club on one occasion. The Tribunal also found the SMS text messages from May, June and August 2012 to be “particularly unpersuasive”.
At paragraph 62 of its Decision Record the Tribunal found that it did not accept that the Applicant:-
a)was homosexual;
b)had engaged in intimate or sexual relationships with other men including his friends Toufik and Sharbil;
c)was overheard discussing his relationship with Toufik or that this was why he was blackmailed by Shafik;
d)was threatened harm of any type by his father;
e)would engage in homosexual behaviour if he returned to Lebanon and therefore did not accept that he faced a real chance of persecution from his family, society or the authorities because of his sexual identity if he returned;
f)has a subjective fear of harm relating to his parent's alleged desire for him to marry; and
g)has had homosexual relationships in Australia or elsewhere.
The Tribunal found that the Applicant's claims were not credible, and did not accept that the Applicant faced a real chance of persecution in Lebanon for reason of his membership of a particular group of “homosexuals in Lebanon” or for any other Refugee Convention reason, now or in the reasonably foreseeable future.
The Tribunal concluded that it was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention, and had not satisfied the criterion required for a Protection (Class XA) Subclass 866 visa, as set out in s.36(2)(a) of the Act.
The Tribunal then went on to consider the application of the complementary protection visa criteria and said at paragraph 66 of its Decision Record:-
“66. Based on the findings of the Tribunal above that the applicant is not a homosexual and has not engaged in any sexual encounters with other men, the Tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm for that reason.”
The Tribunal concluded it was not satisfied that the Applicant was a person to whom Australia has protection obligations under s.36(2)(aa) of the Act.
Consideration
In relation to all the grounds raised by the Applicant, the First Respondent submitted that it is well established by the authorities that the Tribunal is not required to make the Applicant's case for him, nor is it required to uncritically accept any or all of the claims made by the Applicant (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at paragraphs 169 and 170; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265; Nagalingam v Minister for Immigration Local Government and Ethnic Affairs (1992) 29 ALD 173). Further, it is in the Tribunal's discretion what information it relies on and what weight it gives to such information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 10 at paragraph 11; Minister for Aboriginal Affairs v Peko-Wallsend Ltd(1986) 66 ALR 299 at paragraph 328 per Brennan J). All of this is correct and particularly relevant where what is claimed is rejected by the Tribunal.
The Tribunal's adverse findings in relation to the Applicant's evidence and claims related to the Applicant's credibility, as the Tribunal found that the Applicant's claims were not credible, being vague, lacking in detail, illogical and simplistic. Credibility findings are findings of fact, and are a matter for the Tribunal par excellence (Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 at paragraphs 64 to 67). They are not within the jurisdiction of the Court (NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at paragraph 9; Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 136 ALR 481 at paragraphs 272 and 291).
The First Respondent submitted that the Tribunal's reasons for its decision demonstrate that the Tribunal discharged its statutory obligations and arrived at a decision that was open to it on the material before it. Certainly the Tribunal correctly articulated the legal framework within which the application fell for consideration. It then considered the Applicant's evidence, considered country information, and formed factual conclusions based upon its assessment of the evidence before it. The Applicant argued however that the Tribunal’s finding that the Applicant was not homosexual because he had failed to “live in Australia as a gay man” was a finding that was a critical step in the Tribunal's ultimate conclusion and a finding in relation to which there was no evidence to support that finding of fact.
The Applicant argued further that the Tribunal invoked and set up arbitrary criteria for what it was to be a gay man in Australia. The Applicant referred to paragraph 59 of the Decision Record claiming it suggested that the criteria determined by the Tribunal for living as a gay man in Australia were:-
a)being in a relationship;
b)socialising “as a gay man”;
c)seeking advice and help from gay groups; and
d)attending gay clubs.
The Applicant submitted the Tribunal asked itself the wrong question and/or misconstrued its function by basing its finding on whether the Applicant was gay, on whether he was living "in Australia as a gay man", and assessing this against criteria that were uncertain, unclear and subjective.
A finding of the Tribunal which is a critical step in reaching its ultimate conclusion and for which there is no supporting evidence may constitute a jurisdictional error (SFGB v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 77 ALD 402 at paragraph 19; Australian Broadcasting Tribunal v Bond(1990) 94 ALR 11 at paragraphs 355 to 357). However, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did, then it is for the Tribunal to determine what weight it gives that evidence (SFGB v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 77 ALD 402 at paragraph 20). As the Full Federal Court stated in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 77 ALD 402 at paragraph 20 the following:-
“It is for the tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a “bright line", but it is nevertheless an essential one”.
Of course, the Tribunal finding that the Applicant failed to live in Australian as a gay man was but one of its findings as to whether the Applicant was a homosexual person. His vague account of his past sexual encounters, his failure to articulate any emotional aspect of discovering his homosexuality, and his inconsistent conduct of returning to Lebanon after his earlier visit to Australia, were others. Each went to the conclusion arrived at by the Tribunal. In its consideration of the matter, the Tribunal asked of the Applicant how it was that he lived openly as a homosexual in Australia? There was no imposition by the Tribunal of a criteria or a particular measure that the Applicant had to live up to. On a number of occasions the Tribunal attempted to elicit from the Applicant those matters which for the Applicant meant, that he lived openly as a gay man in Australia. The Tribunal did not impose its own criteria on the Applicant, but rather attempted to gain a factual context for the Applicant’s claims. The Tribunal asked of the Applicant:-
“what do you mean by that? You’ve given these broad explanations. What about your life means you were living as a gay man?”
Contrary to the Applicant’s assertions, I find there was no “relevant test” applied by the Tribunal comprising its own arbitrary criteria, but rather an eliciting of relevant information from the Applicant, and a putting to him of matters that the Tribunal had difficult in accepting. There was no illogicality attending the decision. The Tribunal made a number of factual findings on the evidence before it which lead it to a logical conclusion about the Applicant’s claims.
I accept the First Respondent’s submission that the Tribunal did not fail to provide the Applicant with a “fair and full hearing” as it considered and had regard to the text messages provided by the Applicant following the hearing. The First Respondent submits that it was open to the Tribunal to find that the text messages provided by the Applicant after the hearing were “particularly unpersuasive” (Decision Record at paragraph 61). The Tribunal went on to state further that there was “nothing to identify the source of the messages other than the sender's name”. The Applicant argued this was not a proper basis to effectively reject this critical evidence. The Applicant argued in its manner of assessing this corroborative evidence, the Tribunal denied the Applicant a fair hearing. The Tribunal however did not dismiss the SMS text messages on the basis of hearsay, or without giving any reasons for rejecting the evidence, nor did it simply disregard the evidence (SZIEW v Minister for Immigration and Citizenship [2008] FCA 522 at paragraphs 11 to 19; SZQVM v Minister for Immigration and Citizenship [2013] FCA 5 at paragraph 95). It considered the text messages and made a determination as to its factual findings and the weight to be given to such evidence. That is the function of the Tribunal.
Finally, there is no evidence before the Court to substantiate the Applicant's claim that the Applicant's aunt “attempted to unsuccessfully intervene” at the hearing “at times when the Applicant was being questioned about his homosexuality and ‘everyday life’”. This was effectively conceded by the Applicant. At the hearing on 29 August 2012, the Applicant provided to the Tribunal a statutory declaration of his aunt, Ms Georgina Daher, dated 14 May 2012 in support of his application. At paragraph 23 of its Decision Record, the Tribunal noted that Ms Daher was present at the hearing and that the Tribunal asked the Applicant if evidence was to be given by Ms Daher, and that it was told that she would not be giving evidence. The Tribunal therefore did not fail to receive evidence from the Applicant's aunt as claimed by the Applicant, nor was oral evidence from Ms Daher forthcoming (Khant v Minister for Immigration and Citizenship [2009] FCA 1247 at paragraph 80).
Further, as noted by the Tribunal, the declaration of Ms Daher demonstrated that she did not have first-hand knowledge of the Applicant's situation or homosexuality. It cannot be argued as the Applicant sought to do, that the Tribunal failed to make an obvious inquiry with Ms Daher about a critical fact, as her statutory declaration demonstrated the limits of her knowledge (Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429) and there was no other evidence put before the Tribunal by the Applicant from his aunt. The Tribunal took the evidence it had before it into account, but did not accord it much weight as was its function.
The application will be dismissed with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 3 October 2013
0
12
4