SZEND v Minister for Immigration

[2007] FMCA 1171

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEND v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1171

MIGRATION – Review of Refugee Review Tribunal decision – where applicant claimed to be member of social group encompassing homosexuals – where applicant claimed he had been subject to persecution – where Tribunal did not think the applicant was credible – where Tribunal did not accept that applicant was homosexual – whether s.424A applied – whether information had been provided to the applicant.

Migration Act 1958, s.424A

Applicant: SZEND

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3085 of 2006

Judgment of: Raphael FM

Hearing date: 21 June 2007

Date of last submission: 21 June 2007

Delivered at: Sydney

Delivered on: 21 June 2007

REPRESENTATION

Applicant in person

Counsel for the Respondent: Mr P Cleary

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $3,600.00.

3. The name of the First Respondent be amended to “Minister for Immigration & Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3085 of 2006

SZEND

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Mongolia.  He arrived in Australia on 19 November 2003 and on 11 December 2003 applied to the Department of Immigration and Multicultural Affairs for a protection (class XA) visa.  A delegate of the Minister refused to grant the visa on 26 March 2004.  The applicant sought review of the delegate’s decision which was considered by the Refugee Review Tribunal on 12 August 2004.  The applicant sought review of the Tribunal’s decision and on 17 May 2006 the Federal Court remitted the matter to the Tribunal to be determined according to law.  A second Tribunal was constituted and the applicant attended a hearing before it.  On 12 September 2006 the second Tribunal determined to affirm the decision under review and that decision was handed down on or about 3 October 2006. 

2. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations was that he was a member of the social group encompassing homosexuals and that he had been the subject of persecution in his homeland and would be the subject of more persecution should he return there.  In the Tribunal’s reasons for decision, it sets out in some detail the applicant’s response to questions in the application form for a protection visa, the applicant’s statement and much of the evidence before the Tribunal.  The second Tribunal noted that although the applicant, through his agent, had indicated that he proposed to provide further documents and written argument in support of his claim, those did not materialise.  The applicant was represented by a migration agent at the hearing. 

3. At the commencement of the hearing, the Tribunal told the applicant that having listened to the previous hearing tape it was rather unclear as to the harm he felt he might have experienced in the past in respect of his claims of being a homosexual.  Discussion on this point proceeded during the course of which the applicant raised a number of examples of persecution including detention by the police and, in particular, being arrested about 10 times and being beaten up that had never been raised before.  As the Tribunal says at [CB152]:

   “The Tribunal discussed with the applicant concerns about his credibility, in particular the fact that he lodged an application for review and it had not mentioned any of his claims in any written statements to the Tribunal, nor had he raised the claims at the first Tribunal hearing.  The Tribunal noted the applicant was now claiming to have experienced something in the order of more than 10 arrests and to had been fired from his employment because of his homosexuality and to have experienced regular beatings.  The Tribunal stated that this seemed to be a different picture from claims he provided at his first hearing at the Tribunal and he had made no reference to those experiences in his application for review or any written statement to the Tribunal.” 

4. The applicant responded to this questioning to the effect that he was not familiar with the processes in Australia which the Tribunal rebutted by reference to his membership of a gym and his having a mobile phone.  After the hearing was ended there was a post-hearing submission provided by the applicant’s agent which the Tribunal took into account.  This submission dealt with the applicant’s failure to satisfy the Tribunal about his credibility. 

5. The Tribunal’s findings and reasons commence at [CB154] and conclude at [CB156].  At [CB155] the Tribunal says:

   “The applicant made a number of significant claims in the latter part of the hearing which were not made out in the first hearing or in any written submissions to the Tribunal or in the application for review.  In particular, the applicant claimed that he was fired from his employment as a teacher because of his homosexuality, he was beaten on numerous occasions because of his homosexuality and he was arrested more than ten times because of his homosexuality. 

   Given the significance of these claims, and given the specificity of them then one might reasonably expect that a person who has undergone these experiences, such that they feel compelled to flee their country and seek protection elsewhere, would make these experiences known either in writing to the Tribunal or in the hearing of 2004.  More especially so, if they have gone to the effort of availing themselves of the assistance of a migration agent to prepare their case.”

6. The Tribunal then dismissed the explanations provided by the applicant’s adviser before saying (at [CB155]-[156]):

   “Furthermore the Tribunal considers that the applicant’s oral evidence was unconvincing in that the belated addition of new claims was incongruent with the applicant’s oral evidence earlier in the hearing…

   For all the reasons set out above, the Tribunal does not accept that the applicant was arrested on some ten occasions, was fired from his employment and was regularly subjected to beatings by reason of the claimed sexual orientation.”

7. The Tribunal went on to make other findings of non-acceptance including the finding that it did not accept that the applicant was a homosexual (at [CB156]): 

   “ …given the unsatisfactory nature of the applicant’s evidence in the ways outlined below [the Tribunal probably means above] the Tribunal is not satisfied as to the applicant’s general credibility, and is therefore not inclined to extend to him the benefit of the doubt about his claimed sexual orientation.”

   As the Tribunal found that the applicant was not a homosexual, then it followed that any persecution that he claimed to have suffered as a result of being a homosexual did not take place, nor was there any genuine fear of returning to his country of origin. 

8. In his application to this Court, the applicant stated:

   “(1) RTA decision was effected to take into account a relevant consideration when it assessed whether the delegate of the minister raised reasonable grounds for not granting a protection visa.”

   The duty of the Tribunal is to provide a full merits review of an application and therefore it matters not what failure accompanied the delegate’s decision; the whole purpose of the Tribunal hearing being to put such failures right.  In those circumstances there is no substance to that ground of the application.

9. The second matter raised by the applicant was that:

   “The Tribunal did not properly consider  … the chance of my persecution if I return to Mongolia.  I was persecuted because of my lifestyle and persecuted by extremists.”

   Leaving aside the fact that there did not appear to be any evidence relating to extremists, it cannot properly be said that the Tribunal failed to consider the chance of his persecution if he returned to Mongolia.  Firstly, the Tribunal considered quite a wealth of independent country information concerning homosexuality in Mongolia.  Secondly, and more importantly, the Tribunal came to a conclusion that the applicant was not a homosexual and therefore he would not face persecution for that reason if he returned to the country. 

10. I had some concerns about the finding by the Tribunal that the applicant was not a homosexual because in the green book it appears that the delegate accepted that he was and I wondered whether the second Tribunal had adequately raised with the applicant this matter so that it could not be said that this was an issue of the type that had exercised the words of the High Court in SZBEL v Minister for Immigration [2006] HCA 63 at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Mr Cleary, who appears for the Minister, made the point that the applicant’s whole claim related to his homosexuality, and therefore, it was always a matter that was very much an issue. He then pointed to the final paragraph at [CB147] in which the Tribunal says:

    “The Tribunal put to the applicant that the previous Tribunal in its discussion with the applicant at his hearing had doubted that the applicant was a homosexual by reason of the fact that he was an educated person and had claimed to be homosexual since his teenage years but had no knowledge of the legal status of homosexuality in Mongolia.” 

    I think that that questioning clearly raised the possibility that the applicant’s sexual orientation was not accepted by the first Tribunal and thus the Tribunal did not fall into any form of jurisdictional error by coming to a conclusion that the applicant was not that which he said he was. 

11. The third ground raised by the applicant was that:

    “Tribunal did not provide me an adequate opportunity to respond the substance of the information. The Tribunal did not ask me relevant questions.” 

    I have some doubts as to exactly what is meant by this statement but I would note that the Tribunal did give the applicant and his advisor an opportunity to respond to things said in the Tribunal hearing and a post hearing submission of some length was delivered on 3 September 2006. If it is to this the applicant refers, then the ground has no validity. If, on the other hand, the applicant is making some vague reference to s.424A of the Migration Act 1958, I think it is only fair to the respondent and to the Court that he particularise it somewhat more specifically. Mr Cleary says in his helpful written submissions that there was no information that formed part of the decision to affirm the delegate’s decision that fell within the meaning of s.424A(1) in the present case and as far as I can see, he is probably right.

12. It follows from this analysis that I am unable to find that there are any grounds upon which the Tribunal could be said to have fallen into jurisdictional error in the manner in which it reached its decision.  I dismiss the application and I order that the applicant pay the respondent’s costs in the sum of $3,600.00.  I order that the name of the first respondent be changed to “Minister for Immigration and Citizenship”.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  21 June 2007