SZENG v Minister for Immigration
[2005] FMCA 1435
•29 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZENG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1435 |
| MIGRATION – Refugee – membership of social group – bisexual – vague claims – lack of detail in evidence before Tribunal. |
| Migration Act 1958, s.65, 36(2), 420, 425A, 426A, 441A, 441C |
| Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 |
| Applicant: | SZENG & ANOR |
| 1st Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| 2nd Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3003 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 29 September 2005 |
| Date of Last Submission: | 22 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. L. Clegg |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal to be joined as the second respondent in these proceedings.
The application is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $4500, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3003 of 2004
| SZENG & ANOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
1st Respondent
REFUGEE REVIEW TRIBUNAL
2nd Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 6 October 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 August 2004 and handed down on 7 September 2004 to affirm the decision of a delegate of the first respondent Minister to refuse a protection visa to the applicants. The Tribunal is joined as the second respondent to these proceedings.
The applicants, who are husband and wife, are citizens of Mongolia who arrived in Australia on 6 January 2004 and lodged an application for protection visas on 6 February 2004 with the first respondent's Department. On 26 March 2004 a delegate of the respondent Minister refused to grant protection visas and on 21 April 2004 the applicants applied for review of that decision. Only the applicant husband made claims to be a refugee pursuant to the Refugees Convention. The applicant wife did not have any claims to be a refugee in her own right and applied as a member of the applicant husband's family unit. The application for protection visas is at Court Book 1 to CB 30 and the applicant husband's claims are particularly set out at CB 7 to CB 10. The application to the Tribunal is reproduced at CB 79 to CB 82 and the applicant husband's claims are set out at CB 81. The applicant husband’s claims centre around his bisexual orientation and the harm that he fears should he return to Mongolia. His claims were repeated in his application to the Tribunal, which also reviewed these claims at CB 96.6 to CB 98.1. Paragraph 9 of the respondent’s written submissions provides a summary of these claims and I adopt this paragraph for the purposes of my Judgement:
“a) he left Mongolia because he fears persecution due to his bisexuality;
b) he suffered harassment at school;
c) he left school and moved to the capital city to continue his education. There he established contacts with the local gay community;
d) however his bisexuality soon became known to his class mates and he again became the subject of persecution;
e) he had a gay partner and they were both beaten by the police after the police saw them kissing in public;
f) his father has promised to kill him and/or place him in a mental institution or a Buddhist monastery;
g) even though he has married, this has not changed attitudes towards him;
h) he and his wife fell in love and got married in 2001. His wife knows that he has sex with men;
i) his gay partner got jealous and beat him when the applicant refused to go out with him;
j) homosexuality is very hidden in Mongolia;
k) if he returns to Mongolia he fears the police will still have a file on him and could harass him at any time;
l) his life will be threatened if he returns and at the very least he will face significant physical harassment and ill treatment;
m) he fears his father may kill him;
n) his wife’s parents have demanded that he and his wife divorce or they will place him in a mental institution. They have good connections to law enforcement agencies in Mongolia;
o) the attitude towards sexual minorities in Mongolia is very slow to change. Same sex practice remains hidden. Advocacy groups are powerless and play no significant role in community life; and
p) the authorities are not willing to protect him and the police keep files on homosexuals.”
The Tribunal wrote to the applicants by letter dated 2 July 2004. The letter was sent to the applicants’ then migration adviser in compliance with the applicants’ direction that correspondence about the application be sent to the migration adviser with a copy sent to the applicants at the address provided to the Tribunal as the home and mailing address (CB 79). The Tribunal advised that it had considered the material before it, but was unable to make a decision in the applicants’ favour on this informational alone and invited the applicants to a hearing with the Tribunal to give oral evidence and present arguments in support of their claims. A time, date and place was given for the hearing and the Tribunal provided clear notification that if the applicants did not attend the hearing, and the Tribunal did not postpone the hearing, it could make a decision on the case without further notice. On 20 July 2004, the Tribunal received advice from the applicant husband that he did not want to attend a hearing of the Tribunal and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow the applicants to appear before it. The Tribunal then proceeded to determine the matter on the evidence available to it. The Tribunal's “Findings and Reasons” are set out at CB 98.2 to CB 99.8. The respondent’s written submissions at paragraph 10 set out the Tribunal's findings. I adopt this paragraph for the purposes of my Judgement. The Tribunal:
“a) observed that the presentation of the applicant’s claims was vague and lacking in detail in several important respects;
b) observed that where broad allegations are made, the hearing represents the opportunity for the applicant to present his case. As the applicant did not attend the hearing a number of relevant questions remain unanswered;
c) criticised the lack of detail supporting the applicant’s claim to be bisexual;
d) noted that the claim to fear physical harassment and ill treatment is supported only by an allegation that he was beaten by the police on one occasion and by his gay partner out of jealousy on another occasion (and that no detail had been provided about these incidents);
e) noted that the applicant’s claims concerning his fear of his father make no reference to any action taken against him by his father. Nor is there an explanation as to how his father might carry out his threats when the applicant lives some distance from his father;
f) noted that the claim concerning threats received from the applicant’s parents-in-law does not include a claim that these threats have been followed up in the two years since the couple’s marriage;
g) observed that the applicant did not apply for a protection visa until the day that his visitor’s visa had expired, and that the timing is not consistent with having a fear of persecution if he were to return to Mongolia; and
h) concluded it was not satisfied that the applicant had a well founded fear of persecution for a convention reason upon his return to Mongolia.”
The application to this Court asserts two grounds:
“1. The Tribunal had no evidence before it to make a conclusion whether I have a well-founded fear to return to Mongolia. The Tribunal had no evidence before it to conclude whether I am a bisexual and was beaten by the police for that reason.
2. The Tribunal has no country information before it to determine whether my safety will be in danger if I go back to Mongolia.”
The applicants have not filed any amended application nor have they filed any written submissions. I note that the applicant husband had indicated at the first Court date in this matter that he wanted to access the Court’s Legal Advice Scheme and was referred to a lawyer on the panel of that scheme for the purpose of receiving legal advice. The Court file contains a letter from this lawyer with a copy of a letter from the applicant husband notifying that he did not wish to participate in the scheme and would not attend the scheduled consultation. The applicants appeared before me unrepresented and were assisted by an interpreter in the Mongolian language. Ms. Clegg appeared for the respondents. At the hearing before me the applicants stated that they relied on their migration agent in the conduct of the application before the Tribunal and that there were some language difficulties in communicating with the agent even using a language common to each of them – Russian. Clearly, as Ms. Clegg submitted, language difficulties with their migration agent (it was unexplained why an interpreter was not used) and even any possible “bad advice” from the agent has no bearing on showing whether the Tribunal’s decision is affected by jurisdictional error. The applicants also wanted to revisit the merits of their refugee claims which had been or should have been put before the Tribunal. The applicant husband made reference to threats, harassment and attacks in Mongolia, and his fear from “two people” of being killed and treatment that he had received in Australia for injuries sustained in Mongolia as a result of these attacks.
I explained to the applicants the role of the Tribunal and the role of the Court and that the Court was not able to engage in impermissible merits review, which is what they were seeking from the Court.In the application to the Court the applicants complained that the Tribunal had no evidence before it to come to the conclusion as to whether the applicant husband had a well-founded fear of persecution if he were to return to Mongolia, and that it had no evidence before it to conclude whether he was bisexual and was beaten by police for that reason. It is, as Ms. Clegg submits, that the relevant facts to support an application to the Tribunal need to be supplied by the applicant himself in as much detail as necessary to establish the facts. It is for the applicant to make out his case: Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559 at 596 per Kirby J. The relevant statutory regime (s.65 and s.36(2) of the Migration Act 1958) (“the Act”) provides that a decision maker must reach a requisite level of satisfaction that an applicant meets at least the criterion for the grant of a protection visa as set out in s.36(2) and that is, that the applicant is a refugee pursuant to the definition as set out in Article 1A(2) of the Refugees Convention. It is clear that in the circumstances before me, the Tribunal could not reach this requisite level of satisfaction. It is not as the applicants appear to suggest, that the Tribunal must find evidence to disapprove an applicants’ claims. The Tribunal in the case before me clearly understood the test that it needed to apply and that is, whether it could be satisfied that the applicant had a well-founded fear of persecution in Mongolia for any Convention reason. On what the applicant himself had put before the Tribunal it could not be so satisfied. Nor I note, was there any degree of doubt in it being unable to reach the requisite level of satisfaction such as would have required the Tribunal to ask itself the “What if I am wrong?” question in the circumstances of what was before it: Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. The applicants were on clear notice that the Tribunal was unable to be satisfied that the applicant husband met the test to be found to be a refugee, and were invited to come to a hearing before the Tribunal.
I note that in similar circumstances where an applicant failed to appear before the Tribunal in the face of a letter as in the case before me, putting the applicant on notice that the Tribunal was not prepared to make a decision in favour of the applicants, a Full Federal Court has described rejection of the application as “an inevitable consequence” of the non-attendance: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. Clearly the applicants were put on notice as to the Tribunal's preliminary view and given the opportunity to provide further material by way of evidence at a hearing before the Tribunal or oral submissions in support of their claims. They chose for whatever reason not to attend. The applicants cannot now complain that the Tribunal was not able to be satisfied as to the matters that it needed to be so satisfied before protection visas could be granted. In Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 the Court cited the Full Federal Court’s decision in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 at [16], where it was said:"Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence."
The applicants also complain that the Tribunal did not have any country information before it to determine whether the applicant would be safe in Mongolia. It is clear that the Tribunal did not rely on any independent country information to make its decision. Clearly, as Ms. Clegg submits, it was not required to do so in all the circumstances.
As I have set out above, the applicants did not succeed before the Tribunal because it could not be satisfied that the applicant husband met the necessary criterion. The applicants’ complaints cannot be made out, nor can I see any error, let alone jurisdictional error in the Tribunal's decision. The applicants had every opportunity to attend the hearing before the Tribunal and to furnish additional facts and evidence to support their claims, but did not do so. No jurisdictional error can be established in these circumstances. This is a privative clause decision. The application is dismissed.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 29 September 2005
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