NBMF v Minister for Immigration
[2006] FMCA 1265
•23 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBMF v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1265 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of India claiming fear of persecution on account of homosexuality – finding that homosexuals in India are a particular social class – whether breach of Migration Act 1958 (Cth) s.424A where Tribunal relied on evidence from a witness called by the applicant over and above that which was in the witness’s proof of evidence – failure to take account of relevant consideration – whether Wednesbury unreasonableness – remitted to Tribunal. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.424A |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 SZEEU v Minister for Immigration & Multicultural & IndigenousAffairs [2006] FCAFC 2 SZCNG v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 505 followed Minister for Immigration & Multicultural & Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 followed ReRuddock & Ors; Ex parte Reyes [2000] HCA 66 applied |
| Applicant: | NBMF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3241 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2006 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Jones |
| Counsel for the Respondent: | Ms Kaur-Bains |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Ms. Louise Nicholls is removed as Second Respondent to the application.
The name of the Second Respondent is Refugee Review Tribunal.
That an order in the nature of certiorari issue quashing the decision of the second respondent made at Sydney on 19 July 2004.
That an order in the nature of mandamus issue remitting the Applicant's application for a protection visa to the second respondent for determination according to law.
The First Respondent pay the Applicant's costs fixed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3241 of 2005
| NBMF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal signed on 29th June and handed down on 19th July 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa.
Background
The Applicant is a citizen of India who arrived in Australia on
12th August 1997. It was not until 16th November 2004 that the Applicant lodged an application for Protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs, to use the name that was in force at the time. On 3rd March 2005 a delegate of the Minister refused the application for a visa and so on 24th of that month the Applicant applied for a review of that decision.
The Applicant was invited to attend a hearing of the Tribunal. That hearing took place on Monday 6th June 2005. The Applicant, who was represented by a solicitor who is also a registered migration agent, indicated that the Applicant wished the Tribunal to call two people as witnesses, and those names were given. One of the witnesses, and the one who is relevant to these proceedings, provided a statutory declaration and this was submitted to the Tribunal in the form of a proof of evidence.
The Applicant's claims relate to the fact that he has, to use the vernacular, come out as a homosexual. He had been married but that marriage had soon come to an end and he has formed a relationship with another man. The Applicant fears persecution if he is required to return to his native India on the basis of threats from family members inter alia that they would kill him. The Applicant claimed that homosexuality is condemned in India, particularly in the Sikh community from which he comes, and it is impossible to seek police protection.
The Applicant claimed the police targeted homosexuals for violence and blackmail. The Applicant had also claimed that in early 1996 a cousin of his was killed by an uncle because he was found having sex with a man. The Applicant claims that his father and another uncle have threatened to kill him. The Applicant in fact has virtually cut off all relations with his family. The Applicant had indicated that two witnesses were sought to be called and the Tribunal heard evidence from those people.
One of them was a man with whom the Applicant is in a relationship. The other one, who is relevant to these proceedings, was his former flat mate. He was also from the Punjab; he was a Sikh; he was living in a flat with the Applicant and had no idea, he said, the Applicant was a homosexual. He was aware of the Applicant's rather brief marriage which soon ended in a separation and it was not until after that that the Applicant told him that he was a homosexual.
The friend gave evidence about telephone calls from the Applicant's family pressuring him to encourage the Applicant to go home and trying to get in touch with the Applicant. The Applicant's uncle, being the same person to whom the Applicant referred as making threats to kill him, spoke to the friend and the friend confirmed the man was "very nasty".
The Tribunal’s findings and reasons
The Tribunal's findings and reasons, which are extensive, are set out on pages 136 through to 141 of the Court Book. The Tribunal found that the Applicant was a citizen of India and noted his claim that he feared persecution if he were to return to India because of his membership of a particular social group constituted by homosexuals.
The Tribunal accepted at page 139 that for Convention purposes homosexuals in India can constitute a particular social group and for the purpose of the decision was prepared to accept that the Applicant was homosexual. The Tribunal cited evidence as to why it was prepared to accept that.
The Tribunal dealt with the Applicant's fear of persecution and at page 136 made a finding which is one of the matters that the Applicant challenges in this Court. The Tribunal referred to family members sounding angry on the phone and making threats and went on to say:
This does not, in the Tribunal's view, indicate that family members would really harm the Applicant, in a manner and with a severity which could be described as persecutory; people often threaten "to kill" someone using it as a figure of speech. However, the real chance of, say, the uncle actually murdering the Applicant in cold blood - when the Applicant is an adult male very close to 30 years of age, and in a country which is a modern democracy with laws proscribing such assaults and with a criminal justice system to uphold the laws - is, in the Tribunal's view, a remote one.
The Tribunal also put to the Applicant that if he wished to avoid family problems he could settle in a city rather than living in rural India, including one such as Bombay, or Mumbai as I understand it is now called, which is said to have a significant gay community. The Tribunal acknowledged that the Indian penal code had a number of laws which clearly date back to Victorian times, and that whilst homosexuality per se was not proscribed, s.377 of the Indian Penal Code proscribed unnatural offences which were defined as penetrative intercourse against the order of nature with man, woman or animal.
The Tribunal did acknowledge that because Indian homosexuals were not charged under a particular law does not mean that they do not face other harm, official or unofficial. Nevertheless, the Tribunal considered the way in which the Applicant had led his life over the past eight years in Sydney, a place where homosexuality does not have to be hidden.
The Tribunal considered that there was nothing in the Applicant's appearance, manner or behaviour which indicates that he is homosexual and referred to his best friend who had shared a house with him, who had given evidence, who did not know until he was told by the Applicant. The Tribunal went on to find at page 140:
Given the way the Applicant has lived for eight years in a place where there is no compunction to hide homosexuality, the Tribunal is satisfied that the Applicant could live in Bombay (or a number of other cities) in the same way and ‘ there was not a real risk of his being persecuted’. In other words, if the Applicant continues to behave as he has done in Australia - that is the way he has chosen to conduct himself - then there is no real risk of his being persecuted.
The Tribunal found that his fears of being targeted for persecution simply because of his being in a homosexual relationship, or because he will be thought to be a homosexual for not having a wife and children, are not therefore well-founded.
The Tribunal was not satisfied the Applicant was at risk of persecution in India because of his sexual orientation and affirmed the Tribunal's decision not to grant a protection visa.
Application for judicial review
For the Applicant it is submitted that the Tribunal has fallen into jurisdictional error. The grounds upon which the Applicant relies are, first of all, a breach of s.424A of the Migration Act, a failure to consider the Applicant's personal circumstances, a finding in relation to internal flight, and a claim of Wednesbury unreasonableness.
The first ground, the breach of s.424A, is directed towards the evidence of the Applicant's witness which was taken into account by the Tribunal in concluding that the Applicant would not be identified as a homosexual if he returned to India. This finding, it is submitted, was central to the Tribunal's conclusion that the Applicant did not have a well-founded fear of persecution.
The submission is that this was information which was about the Applicant personally, it was not given to the Tribunal by the Applicant, and was not non-disclosable information, and that the Tribunal was therefore required by s.424A of the Act to give the Applicant a notice in writing requesting his comments about it, and that failure to do so amounted to jurisdictional error. The Applicant relies on SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, SZEEU v Minister for Immigration & Multicultural & IndigenousAffairs [2006] FCAFC 2 and, in particular, a decision by Barnes FM in SZCNG v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 505. I will return to that decision shortly.
The Respondent disagrees that there is a breach of s.424A, although she concedes at paragraph 17 of the submission that the witness could be classified as information. The Respondent disagrees that the evidence would be the reason, or part of the reason, for affirming a decision that is under review. The submission goes:
On a fair reading of the Tribunal's reasons the said information does not form part of the Tribunal's reasons for affirming a decision under review and it is simply noted to show that the applicant's flat mate was ignorant of the Applicant's homosexuality. Therefore no written notice is required under s.424A.
I inquired during the hearing as to the significance of the statutory declaration, to which I previously referred, which had been supplied to the Tribunal and which I indicated as being supplied in the nature of a proof of evidence. If the information upon which the Tribunal relied was contained in the statutory declaration, it would be my view that the information was not required to be disclosed as, in my view that would be characterised as evidence provided by the Applicant himself and would attract the protection of sub-s.3 of s.424A.
The Applicant's solicitor, Mr Jones, pointed out to the Court, and it was not disagreed with by counsel for the Respondent, that the information referred to was not contained in the statutory declaration. This information was over and above what was in the witness's proof of evidence. Given the circumstances, I am therefore referred to the decision by my sister Barnes in SZCNG to which I have previously referred.
Her Honour considered at [41] through to [64], a number of authorities on the question of whether evidence given by a witness whom the Applicant asked the Tribunal to call, would fall within the exception in s.424A(3) as evidence provided by the Applicant. Her Honour concluded that it would not, and the submission is that her Honour's reasoning is correct and should be followed. I have read her Honour's decision with great interest. Her Honour reviews the authorities at [41] through to [64].
As I indicated earlier, if the information referred to by the Tribunal had been contained in the witness's statutory declaration, I would have taken the view that it was covered by sub-s.424A(3). But as I said, it is not. It is evident, over and above that which the Applicant expected the witness to provide. Turning now to her Honour's decision in SZCNG, her Honour said at [63]:
Such an approach would also suggest that the exception to s.424A in sub-section (3) should be read strictly, consistent with the fact that s.424A is, as McHugh J put it in SAAP at [77], ‘one of the centrepieces of the Migration Act's regime of statutory procedural fairness’.
Her Honour went on to say at [64]:
In all the circumstances, particularly in light of the approach taken in SAAP, and the view that s.424A imposes a mandatory requirement, and given that under s.424A it is not simply a question of giving the applicant information, but also ensuring as far as reasonably practicable, that the applicant understands the relevance of that information and is given an opportunity in writing to comment. I am of the view that information is not given by the applicant where it is given orally by a third party in response to questioning of the Tribunal hearing. The fact that the applicant had given the Tribunal notice that the applicant wanted the Tribunal to obtain oral evidence from that person and the Tribunal decided to do so in the presence of the applicant does not alter my conclusion (see Hayne J at [199] in SAAP). Hence on balance I am not persuaded that the information given by the applicant's niece and/or husband was information that the applicant gave for the purpose of the application within s.424A(3)(b).
The decision by her Honour is a decision at first instance as indeed is this. It is not binding upon me. There is, however, a principle of judicial comity, that is to say that a Court should follow such a decision unless it is satisfied either that the decision can be distinguished on its facts or that it is wrongly decided. Quite clearly the decision in SZCNG cannot be distinguished on its fact. It appears to me to be on point. As to whether it is wrongly decided, whilst I have some misgivings about the result, I am not prepared to say that it is wrongly decided.
Her Honour's analysis of the decision is detailed and wide‑ranging and in the circumstances, whilst I am perhaps doubtful, I have not reached a stage of being able to make a pronouncement that her Honour's decision is wrong. That being the case, as I am not prepared to say that SZCNG is wrongly decided, I am of the view that I should follow it. That said, I am satisfied that in the circumstances the Tribunal has fallen into jurisdictional error.
There is, in my view, another matter which needs to be considered, which is a separate submission by the Applicant. The Applicant refers to a claim of Wednesbury unreasonableness which relates to one specific finding of the Tribunal. The submission is that the Tribunal's conclusions on the evidence before it was so egregious as to fall within the well-known definition. The submission is that the Tribunal did not dispute the Applicant's claim made at the time of the visa application that an uncle had murdered one of his cousins for being a homosexual, and despite that the Tribunal formed the view that family members would not really harm the Applicant and that the use of threatening to kill was a figure of speech.
True it is that the uncle who is alleged to have murdered a cousin for homosexual behaviour is not the uncle who has made the threats to kill. Mrs Kaur-Bains for the Minister put to me that the Tribunal did not refer to that evidence, or seek to distinguish it, because the Tribunal did not consider it to be relevant. With respect, I disagree. In the circumstances it is quite clearly relevant if an applicant expresses a fear that he may be murdered or suffer physical harm from a family member for homosexual behaviour and it is not disputed that another family member has suffered such a fate for the same reason from another family member, another uncle, that is not a matter that can be disregarded.
I am not of the view, however, that it is Wednesbury unreasonableness. I am of the view that it is a jurisdictional error and I refer to the decision of Minister for Immigration & Multicultural & Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 which is a decision of the Full Court of the Federal Court in respect of an appeal from Walters FM. Needless to say, a decision of the Full Court of the Federal Court, if on point, is certainly one which this Court is bound to follow and no doubt their Honours will be relieved that I do not, in this case, express any misgivings about their findings.
The point that their Honours make, which I believe is relevant to this particular matter, is what their Honours describe as the “no evidence point”. Their Honours said at [5]:
Counsel for the appellant accept that an error of law will be established if it appears that the Tribunal has made a finding of fact, or has drawn an inference, without any supporting probative evidence. They also accept that this error will amount to jurisdictional error if the Tribunal’s decision is based on such a finding. In our opinion this is such a case, although the application of the principle is here complicated by the circumstance that the relevant finding was of a negative, rather than positive, character.
Their Honours referred to at [10], in that decision of the Tribunal's referring to the absence of any mention either of an event or an attitude which would support the respondent's claim. They went on to find at [11]:
It was for the Tribunal to evaluate the significance of this statement, considering it in the context of the whole report and the other evidence. The outcome of that evaluation would be a finding of fact and probably invulnerable to judicial review. However, the Tribunal did not undertake any such evaluation
Their Honours went on to say at [13]:
The situation that arose in this case might preferably be described as a failure to take account of relevant material rather than ‘no evidence’. However, the label does not matter. On any view of the matter, the Tribunal fell into jurisdictional error.
In my view, the situation is on all fours with that described by their Honours in VOAO. The Tribunal may not have considered the Applicant's claim about another family member being murdered by an uncle for homosexual behaviour as relevant. For all intents and purposes when making the finding that it did, the Tribunal had ignored that statement. If the Tribunal had given some consideration to that statement in making its finding that would no doubt have been a finding of fact and, as their Honours suggest, probably invulnerable to judicial review. However, the Tribunal did not do so.
By making the finding that it did, the Tribunal ignored the significance of that particular claim and fell into jurisdictional error. In my view, as I have found two instances of jurisdiction error, the decision cannot stand and I propose to grant the application. In my view this is a case for granting of relief. I indicated at the hearing that the name of the Tribunal Member should not be included as a Respondent and I refer to the decision in ReRuddock & Ors; Ex parte Reyes [2000] HCA 66.
There is an application for costs. Costs follow the event. The matter did go the full distance and I certainly considered the material over the last couple of evenings. The amount sought is unchallenged by the solicitors for the First Respondent, a concession that does them credit. In my view it is an appropriate figure.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 29 August 2006
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