SZERZ v Minister for Immigration

[2007] FMCA 1810

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZERZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1810

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZERZ”.

Migration Act 1958 (Cth), s.91X

Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Paul Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396

Applicant: SZERZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3767 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 9 August 2007

Date last submissions filed: 23 August 2007

Delivered at: Sydney

Delivered on: 7 November 2007

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Thai interpreter

Counsel for the Respondents: Ms B Nolan

Solicitors for the Respondents: DLA Philips Fox

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

2. The application filed on 15 December 2006 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3767 of 2006

SZERZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. The applicant is a 30 year old male who claims that he was born in Phetchabun, Thailand, that his religion is Buddhist and his ethnic group is Thai. He claims he had 12 years of education and holds a trade certificate but his only employment was in a business for just over a year.

2. The applicant claims he is a homosexual and that he left Thailand because faced a severe and frightening situation and lived in constant fear of being bashed or killed. He claims if he is forced to return to Thailand his persecutors would force him to work as a male prostitute and to be their slave. He claims that he will be harmed by those involved in people trafficking and forcing him into prostitution. He claims that the local authorities and legal organisations support these illegal activities.

3. The applicant arrived in Australia on 5 April 2004 and applied for a Protection (Class XA) visa on 5 May 2004. A delegate of the first respondent refused to grant a protection visa on 18 May 2004 and the applicant applied to the Refugee Review Tribunal (“Tribunal”) for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision and the applicant applied to this Court for judicial review of the Tribunal decision. By consent, the Tribunal decision was set aside and the matter was remitted to the Tribunal to be determined according to law. The second Tribunal rejected the applicant’s claims. The current application to this Court seeks review of that decision made on 17 November 2006, reference 060697694.

4. A Court Book (“CB”) was prepared and filed by the first respondent's solicitors and is marked Exhibit “A”. This document was read into evidence.

Consideration

1. At the first Court date, the applicant indicated that he wished to participate in the scheme to give unrepresented applicants in refugee matters an opportunity to receive independent legal advice. The Court file indicated that the applicant attended a conference and received legal advice from a member of that scheme’s panel. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon. He availed himself of this opportunity and filed an amended application on 5 July 2007.

Ground one

1.  The respondents made jurisdictional error in that the second respondent (“the Tribunal”) ignored relevant material.

Particulars

i)      The Tribunal found that the applicant was homosexual (CB 107).

ii)     The Tribunal found that homosexuals are not persecuted in Thailand (CB 102; CB 107).

iii)     The Tribunal failed to consider relevant material (CB 102)

1. The applicant did not file any written submissions prior to the hearing and also declined to make oral submissions in support of his application.

2. Ms Nolan, for the respondents, submits that the alleged relevant material was not identified with any precision in the amended application. However, the particulars of this ground suggest that the material in question was country information sighted by the Tribunal in the decision under the heading “Claims and Evidence”. These include:

   ·Sebens, Alison T., ‘Gay and the Law’, Far Eastern Economic Review, 28 October 2004

   ·International Lesbian and Gay Association (ILGA) 2000, World Legal Survey: Thailand, ILGA website

   ·UK Home Office 2003, Thailand Extended Bulleting 1/2003, January 2003

   ·Pathan, Don, ‘Courting the Minority Vote: Gay rights activist backs Kobsak’, The Nation, 10 August 2004

   (CB 102-103)

3. The Tribunal letter sent to the applicant on 19 October 2006 and headed “Invitation to Provide Information”, included mention of the articles (CB 81-86). The tenor of the articles is that Thailand is generally a country tolerant of homosexuality. Ms Nolan contends that it is difficult to see how this ground assists the applicant because the Tribunal did take the material into account. Ms Nolan contends that this ground seems to admit that the information is relevant, despite the fact that it serves to defeat the applicant’s claims.

4. Ms Nolan contends that a ground based on failure to take into account a relevant consideration can only be made out when the Tribunal fails to take into account a consideration which it is bound to consider under the Migration Act 1958 (Cth): Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24. It is submitted when the elements of an applicant’s claim have been addressed, the Tribunal’s failure to refer explicitly to that part of the applicant’s evidence does not mean that the decision is vitiated by jurisdictional error for failing to take into account that element: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] per Allsop J; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68].

5. The absence of particularisation or any submissions results in two approaches to this ground of review in the first respondent’s written submissions. Ms Nolan submits that the country information has been clearly identified and specifically brought to the applicant’s attention in the invitation letter. Alternatively, there is no obligation on the Tribunal to refer the applicant to material which does form the reason or part of the reason for its decision. It appears that the applicant is dissatisfied with the outcome of the decision and is suggesting that a finding more sympathetic to his claims should have been made, and that the Tribunal should have found material to support that outcome. I am satisfied that this ground cannot be sustained.

Ground two

2.  The respondents made a jurisdictional error in that the Tribunal relied on irrelevant material.

Particulars

i)      The Tribunal relied on information that homosexuality was incompatible with the Muslim religion and that the applicant would potentially be exposing himself to severe punishment under the Koran (CB 104; 108).

ii)     There was no evidence before the Tribunal that Thailand is an Islamic country and its citizens are subject to Sharia law.

iii)     There was no evidence before the Tribunal that homosexuals would not be, or would not become, Muslims.

1. Ms Nolan contends that the country information was relevant to the Tribunal’s considerations and supported its findings. Ms Nolan submits that the relevance or weight given to particular country information is entirely a matter for the Tribunal and relies on Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [72] per Heerey, Mansfield and Gyles JJ:

   72.    Even if there is country information which appears, in the view of a judge, to point to a conclusion which is contrary to the decision of the RRT, all that can be concluded is that the RRT did not agree with the country information. The country information is simply individual pieces of evidence and there is no obligation upon the RRT to accept any part of it, or all of it, or to say why it does not accept it. That part of the reasoning in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469, which was applied by the primary judge in this case to a submission which is indistinguishable from the point which is now under discussion, remains consistent with the decision of the High Court in Yusuf (see [88] to [90]). The manner in which the RRT dealt with country information in this case was a matter for it. In particular, the decision involved no error of law within the meaning of s 476(1)(e) of the Act on that basis. It will be recalled that an error must be an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision. That is not established in the present case.

2. Ms Nolan submits that the remaining particulars in ground two ignore the fact that the Tribunal’s task was to address the applicant’s circumstances and consider whether he had a well-founded fear of persecution within the meaning of Refugees Convention. It was the applicant’s evidence that he intended to become Muslim. The Tribunal did not purport to consider the position of citizens of Thailand in general, and did not make any findings on this point, nor was it required to do so. It is submitted that the Tribunal was satisfied that the applicant personally was not a Muslim and did not intend to become one.

3. This state of satisfaction was based in part on independent information which indicated that homosexuality was incompatible with the Muslim religion. The finding was also based on evidence that the applicant had not made begun the conversion process in over two years. The Tribunal decision notes that the country information was forwarded to the applicant in the “Invitation to Comment” letter of 19 October 2006. The applicant did not respond to that invitation within the specified time frame. Yet, the applicant was aware that after the hearing, the Tribunal had identified that material as being directly relevant to the applicant’s case and invited his comments. The applicant had adequate opportunity to raise this issue. All the issues raised by the applicant under this ground were based on evidence given by him at the Tribunal hearing or in material which was brought to his attention in the “Invitation to Comment” letter. I am satisfied that this ground of review cannot be sustained.

Ground three

3.  The respondents made a jurisdictional error in that the Tribunal did not provide reasons for its findings.

Particulars

i)      The Tribunal found that the applicant had manufactured his claims that he fears being forced into prostitution or being trafficked or fears persecution from his boyfriend’s father or in regard to persons who want to force the applicant to sell his land (CB 107).

ii)     The Tribunal did not give reasons for finding that these claims were manufactured.

1. Ms Nolan contends that ground three ignores the Tribunal’s findings and reasons and states that the Tribunal rejected the claims because they were not raised until a second Tribunal hearing and were unsupported by evidence (CB 106-107). The Tribunal states:

   However, at the second the Tribunal hearing held on 18 October 2004 his claims once again changed considerably and this time when asked to tell it in detail why he believed he was a refugee, he simply replied he didn’t feel safe living in Thailand and when asked why not, he claimed for the first time that his boyfriend’s father was a politician in Sa Keao (and was part of a big political group, had a senior position in the Sa Keao district, and was from the mafia) and opposed his relationship and he threatened his life and he knew two people who had been murdered but the police did not catch the murderers because the politician was like the mafia.  Nor did he claim to still be in contact with his former boyfriend in the 2 ½ years he has been in Australia.  Nor has he provided any evidence the he would not receive protection from the Police in Thailand for a Convention related reason if he sought it.  The Tribunal put to him that subject to any comments he may have, his changing claims may indicate that the claims made in his protection visa application and application for review are not genuine and for example he has not been or does not have a well-founded fear of being forced into male prostitution, or being subject to trafficking, because he is a homosexual or for any other Convention reason; and, as he did not raise the matter of his boyfriend’s father and his concerns about the sale of the land in his protection visa application, application for review, or at the first hearing, he may not have a well-founded fear of serious harm amounting to persecution for a Convention reason on this basis.

   (CB 106-107)

   I agree with the submissions made by Ms Nolan that the Tribunal’s reasons provide sufficient basis for its factual findings, which are not susceptible to judicial review. I am satisfied that this ground cannot be sustained.

Ground four

The respondents misconstrued and misapplied the law in regard to relocation

Particulars:

i)      The Tribunal did not give reasons for its finding that it was reasonable for the applicant to move elsewhere in Thailand.

1. Ms Nolan submits that the Tribunal’s relocation finding was made with respect to the applicant’s claim to have been followed and threatened by a former work colleague whom he was student with. The Tribunal found that there was no real chance the applicant would be subjected to serious harm amounting to persecution for a Convention reason. It found, nevertheless, that the applicant could relocate to Thailand if he had a subjective fear.

2. Ms Nolan acknowledges that the Tribunal did not expressly set out the reason why the applicant could reasonably relocate, however the issue was discussed and recorded in its decision. The Tribunal referred there to its discussion with the applicant about his potential relocation which suggests that it did consider it. Ms Nolan further submits that a relocation finding was not necessary as the Tribunal had already found that the harm claimed by the applicant was not for a Convention reason. It is submitted that this finding was open to it, on the basis the applicant’s oral evidence which suggested no Convention nexus.

3. I agree with Ms Nolan that in the context of the overall finding of the Tribunal it was unnecessary for it to make a finding on relocation. Consequently, this ground cannot be sustained.

Conclusion

1. The applicant in these proceedings is a self-represented litigant and appeared with the assistance of a Thai language interpreter. It appears that he was assisted in the preparation of his Court application but that he did sufficiently understand the issues he raised to address the Court with any supporting oral submissions. Nor did he prepare or have prepared for him written submissions which developed the four grounds of the amended application. The applicant relied totally on his amended application without any further support for his claims.

2. Ms Nolan assisted the Court with the preparation of written submissions, upon which he relied, which addressed each of the grounds of the amended application. After reviewing the contents of the Court Book and in particular the Tribunal decision, it is not apparent that any other ground of judicial review exists which has not been addressed. Consequently the application should be dismissed with costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  7 November 2007