SZABE v Minister for Immigration
[2003] FMCA 333
•25 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZABE v MINISTER FOR IMMIGRATION | [2003] FMCA 333 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution as a homosexual in Nigeria – whether the RRT hearing was procedurally fair – whether the RRT applied the correct test of who is a refugee – whether there was evidence to support the RRT’s finding that the applicant is not a homosexual – no reviewable error found. |
Federal Magistrates Court Rules 2001 (Cth)
McPhee v S. Bennett Pty Ltd (1934) 52 WN (NSW) 8
| Applicant: | SZABE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1101 of 2002 |
| Delivered on: | 25 July 2003 |
| Delivered at: | Sydney, via videolink to Perth |
| Hearing date: | 25 July 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr I Asuzu |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1101 of 2002
| SZABE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 17 September 2002 and handed down on 10 October 2002. The RRT affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa.
The applicant claimed to be from Nigeria and arrived in Australia on 11 December 1999. On 17 January 2000 he lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs. The applicant's claims in support of that application were, essentially, that he feared persecution as a homosexual in Nigeria, drawing upon an experience that he had when his homosexual friend was killed by a mob in that country.
On 14 February 2000 the delegate of the Minister refused to grant a protection visa. On 8 March 2000 the applicant applied for review of that decision before the RRT. The RRT in its decision rejected the applicant's claims on credibility grounds. The presiding member stated that he found the applicant to be a most unsatisfactory witness and that his claims were not believed. The RRT rejected the applicant's claim that he was a homosexual, that he had experienced harm to his homosexual partner in Nigeria, or that he had a genuine fear that harm would come to him in Nigeria.
The only element of any substance in the applicant's claims that was accepted by the RRT was his country of origin. That was of some significance because the decision of the delegate was that the applicant was a South African, having come to Australia on a South African passport. The RRT accepted that, notwithstanding that evidence, the applicant had demonstrated a sufficient connection with Nigeria to establish to the presiding member’s satisfaction that he was, indeed, from Nigeria. However, all other elements of the applicant's claims in support of a protection visa were rejected.
The matter proceeded today on the basis of an amended application filed on 10 July 2003. The application is unsigned, but Mr Asuzu, who appeared for the applicant today, explained those circumstances. The applicant is currently serving a term of imprisonment in Western Australia and it was difficult for Mr Asuzu to arrange for the application as amended to be signed prior to this hearing. In the circumstances, I accepted the amended application in its present form. Mr Asuzu also filed detailed written submissions on 21 July 2003. He expanded on those written submissions orally today. He also referred to a transcript of the hearing before the RRT which took place on
6 September 2001.
The application as amended contains four grounds. The first of these is that the RRT did not take into account the applicant's fear of real harm. The RRT is said to have failed to have considered the prevailing situation about homosexuals in Nigeria in the exercise of its power. The following particular is provided:
Even though the applicant lost his boyfriend in a homosexual/gay bashing attack the member failed to recognise that the applicant continues to harbour protection fears in respect of the persecution he experienced in his native country, at the hands of vigilante justice and/or mob which was condoned by the Nigerian Government or its inability to control.
In his oral submissions, Mr Asuzu put to me that the RRT decision involved errors of law in that the RRT failed to accept what, in his submission, was a coherent and cogent set of claims made by the applicant. Further, he submits that the RRT did not give the applicant a proper opportunity to respond to whatever credibility concerns the presiding member may have had. I suggested to Mr Asuzu that that was, in substance, an argument of the lack of procedural fairness and Mr Asuzu adopted that proposition. Although a breach of the rules of procedural fairness is not specifically identified in the amended application, the matter was argued on the basis that the rules of procedural fairness had been breached.
Mr Asuzu took me to the transcript of the proceedings in order to demonstrate that the first ground had been made out. He pointed out that on a number of occasions the presiding member had said "yes" to statements made by the applicant which, in Mr Asuzu's submission, indicated some assent to the propositions being made by the applicant. Mr Asuzu submitted, as I understand it, that in this respect the applicant was misled into believing that the evidence he was giving to the RRT was accepted and that it was not open to the RRT to make adverse credibility findings without giving the applicant an opportunity to respond to the presiding member's doubts.
In reply, Mr Lloyd, for the Minister, submits that the obligation on the RRT is simply to examine the material presented to it and consider whether that material is sufficient to support the claim that was made. Mr Lloyd referred to the decision of the Workers Compensation Court in McPhee v S. Bennett Ltd (1934) 52 WN (NSW) 8.
I accept, as a theoretical proposition, that the rules of procedural fairness may require that an applicant not be misled by statements made by a presiding member indicating agreement with evidence presented by an applicant, into thinking that nothing further was required from the applicant in order to convince the tribunal as to the case being put. However, while I accept that as a theoretical proposition, in this matter it is clear both from the transcript of the hearing, and the decision and reasons of the RRT relating to the description of that hearing (court book, pages 63–68) that the presiding member was not indicating agreement with or acceptance of the applicant's evidence. On the contrary, the transcript is replete with statements by the presiding member that he had difficulty with the propositions being put by the applicant. This supports the decision at pages 63 to 68 of the court book, which sets out the presiding member's summary of that hearing and the numerous difficulties the presiding member had with the applicant's account. Those difficulties included that the name by which the applicant described the person with whom he had a homosexual relationship changed. At the hearing the applicant told the presiding member that this person's name was Emma Okoun.
However, in his application for a protection visa the applicant had stated that this person's name was Jerry Obi. In addition, the applicant stated at the hearing that he could not remember the name of a person from whom he obtained a South African passport in Swaziland. However, in his protection visa statement the applicant had said that this person was called Emma Nkontha. The applicant was also vague in his recollection of when his friend Emma or Jerry had been killed by a mob, even as to identifying the year.
At page 67 of the court book the presiding member states:
The applicant paused for a long time and then the applicant stated that these things happened between 1996 and 1998. He could not answer the Tribunal about his ability to recall the timing of these events.
The applicant was also inconsistent in his description of the circumstances in which his friend Emma or Jerry was said to have been killed. In his protection visa application the applicant had stated that Jerry was badly injured and died several days later after being in a coma. At the hearing the applicant stated that Emma died on the day that the mob had attacked him. These were some of the more serious inconsistencies identified by the presiding member at the hearing but there were others.
In my view it is apparent from the RRT record that the applicant was not misled by the RRT into believing that his claims were accepted and that, on the contrary, the presiding member went to some lengths to put his doubts to the applicant. The presiding member was not persuaded that the applicant had given a plausible explanation for the very serious inconsistencies between his original claims and those made at the RRT hearing.
I find that the adverse findings on credibility made by the RRT were reasonably open to the RRT on the material before it. There was no procedural unfairness in the conduct of the RRT hearing in this respect. Accordingly, the first ground is not made out. Grounds 2 and 3 in the amended application must also be rejected.
The second ground is that the RRT failed to consider whether the applicant had a well founded fear of persecution by reason of being a member of a particular social group, namely homosexual men in Nigeria subjected to violence by vigilante or mob justice in Nigeria. The following particular is given:
Although homosexuals are recognised by the Convention as members of a particular social group, the Member was confused to conclude that “he is not a homosexual nor that he is at risk of persecution, if he returned to Nigeria”.
I accept that homosexuals can constitute a particular social group.
I accept at least the possibility that subsets of homosexuals may also constitute a particular social group. However, that is irrelevant in the context of this case because the RRT decided that the applicant did not have a genuine fear of persecution. The RRT was in no doubt as to that finding. In the circumstances, it was unnecessary for the RRT to go on to consider whether the applicant was persecuted for a Convention reason.
The third ground is that the RRT’s decision involved an error of law in that it failed to identify and apply legal requirements in relation to the determination of homosexuals under the Refugee’s Convention. The particulars are that the RRT failed to recognise the relationship between the death of the applicant's boyfriend and whether it was an event designed to harm the applicant and that it was for a Convention reason; and, secondly, that the decision maker failed to consider the obvious difficulties in the homosexual relationship between the applicant and his slain boyfriend.
This ground would be relevant to a consideration of a RRT decision on the question of whether a fear of persecution was well founded and whether a person was persecuted for a Convention reason. However, as I have already stated, the presiding member having made a firm conclusion on the question of whether the applicant had a genuine fear of persecution, the RRT did not have to go on and consider whether the persecution alleged was for a Convention reason or whether it was a well founded fear.
The fourth ground is that the RRT’s decision that the applicant was not homosexual was made without evidence in support, which is contrary to the evidence before the RRT. This appears, on its face, to be a no evidence ground although, as elaborated upon orally by Mr Asuzu, it could also be a ground that the RRT failed to take into account evidence which was contrary to the conclusion drawn by the RRT.
To the extent that this is a no evidence ground of review, it must be rejected because there was clearly probative evidence before the RRT which supported the adverse conclusions on credibility drawn by the RRT. That evidence was the substantial inconsistency between the applicant's statements when he applied for a protection visa and those made by him at the RRT hearing on 6 September 2001.
Similarly, the decision of the RRT based on credibility was contrary to the evidence in as much as it was a rejection of the evidence presented by the applicant. However, the RRT was entitled to draw conclusions on credibility from that evidence. The RRT was entitled to reject evidence which it did not regard as credible. As I have already stated, the RRT had material before it which reasonably supported its findings on credibility.
I therefore reject each of the grounds of review set out in the amended application. I will dismiss the application.
On the question of costs, Mr Lloyd has sought an order for costs on an indemnity basis, noting that this matter has been more than usually delayed, that a previous hearing date was vacated in circumstances that led me to make a costs order against the applicant and that procedural orders made by the Court for the preparation of the matter for hearing today had not been complied with.
Mr Lloyd has submitted that because of the default by or on behalf of the applicant on a number of occasions, the Minister has been put to significant additional and unnecessary expense. Mr Asuzu has pointed to the fact that the applicant is not a free agent, being incarcerated in Western Australia, which has led to more than usual difficulties in preparing the matter for hearing.
Ordinarily, in migration matters, I make an order fixing costs in a specific amount. In the absence of such an order, costs must be assessed in accordance with the scale of costs in Schedule 1 to the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). Ordinarily, I do not apply that scale for the reason that there is a concern that an unduly generous result might be obtained by the successful party. In this matter, I accept Mr Lloyd's submission that the Minister has incurred significant and unusual additional expense and that the matter has been significantly delayed.
In the circumstances, while I am not persuaded that an order for costs is required on an indemnity basis, I am persuaded that the ordinary costs rules in the Federal Magistrates Court Rules should apply and that costs should be assessed in accordance with the scale of costs in the Rules.
I will, therefore, order simply that the application be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 7 August 2003
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