SZFJH v Minister for Immigration
[2005] FMCA 571
•28 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFJH v MINISTER FOR IMMIGRATION | [2005] FMCA 571 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 |
| Re Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZFJH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG3799 of 2004 |
| Judgment of: | Barnes FM |
| Hearing date: | 28 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr A McInerny |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3799 of 2004
| SZFJH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for judicial review of a decision of the Refugee Review Tribunal made on 8 December 2004 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, who is a citizen of Bangladesh, arrived in Australia on
5 September 2004 and applied for a protection visa on 15 October 2004. Initially he claimed to fear persecution on the basis of his past political involvement with and as a member of the Awami League. In the Tribunal hearing he also raised a claim that he was a member of a particular social group being ‘homosexuals in Bangladesh’.
The Tribunal dealt with each aspect of his claims. It gave the applicant the benefit of the doubt, accepting that he supported the Awami League and contributed to the local party's activities on an ad hoc, informal basis. It was not satisfied that he had ever held a formal position or engaged in activities of a leader as originally claimed, or was an activist as claimed at the hearing. His lack of knowledge of local political leaders and infrequent political work led the Tribunal to conclude that he did not have any profile which would give rise to adverse attention from political adversaries.
It noted the improvised and general nature of the applicant’s claims to have once been chased by the police to have ‘always’ been the target of opponents and to have been monitored. It accepted as plausible that the police chased him on one occasion in 1996 but was not satisfied that this occasion had any political significance or that the applicant was potentially exposed to serious harm at that time. It noted that he continued to live in his village for several years after the claimed incident. Given the generalised and vague nature of his statement and inconsistency about whether or not he had ever been subject to false charges, and to changes in the applicant's evidence in relation to what had occurred the Tribunal was not satisfied of these claims or that the police had any action pending against him. It noted that he did not seek or explore avenues for protection whilst in the United Arab Emirates from November 2002 onwards and that thereafter he returned to Bangladesh for a period without incident.
The Tribunal accepted that the applicant had engaged in some low level, insignificant political activities for the Awami League in the past but found that he had not gained a political profile or suffered past harm resulting from this. In the absence of further matters before the Tribunal to suggest that he had, or would be imputed with, a political opinion which could form the basis of persecutory harm in the reasonably foreseeable future, the Tribunal found that the applicant had neither a genuine nor a well-founded fear of persecution based on political opinion.
After what the Tribunal described on initial reluctance the applicant presented a new claim at the hearing that he feared persecution because of his homosexuality. He referred to a number of specific incidents and claimed to have been ostracised by his family and village, persecuted by religious leaders, subject to a verdict, beaten up around the nose, that he fled to India for a few weeks in mid-2002 and that he had to go into hiding in another part of Bangladesh.
The Tribunal found that the applicant's outline of his claimed homosexuality was improvised and lacked coherence. It referred to contradictions in his evidence, such as in relation to whether he had been abroad prior to going to the United Arab Emirates in November 2002, his earlier claim that he had only ever lived in one particular place and his claimed ostracism by his family being contrary to his advice in his protection visa application that he remained in contact with them and his evidence at the hearing that he had asked relatives to seek documentation on his behalf. It found that his return to Bangladesh in 2003 for three months indicated that he was not subject to a fatwa or to any other form of prospective harm.
The inconsistencies were such that the Tribunal found that it could not accept the claims as a truthful account of the applicant’s past experience as based on his sexuality, and of the risks if he returned to Bangladesh. The Tribunal found that it could not attach weight to his claim to have been beaten up and sustained a nose injury as it could not determine the circumstances and severity of the apparent blemish on the applicant's nose and whether it had any relevance to his claim.
The Tribunal then carefully addressed its consciousness that the findings with respect to the applicant's past experience did not address conclusively his claimed homosexuality and whether he had a well-founded fear of persecution. It noted the difficulty of testing such a claim and that it may be largely a matter of self-identity and that questions concerning actual past experience may not be conclusive or appropriate. It also had regard to the fact that attitudes to homosexuality in certain countries and communities were such that “an applicant may fear expressing his or her sexual identity even in environments such as Australian citation where there would appear to be ample opportunity to do so.”
The Tribunal had regard to the applicant’s evidence that he felt inhibited from articulating and acting on his claimed sexuality and his claim that he had not informed anyone other than the current Tribunal member. However it noted that he had lived overseas since late 2002, spoke English and had opportunities in Australia to articulate his sexuality prior to the Tribunal hearing. In these circumstances it considered indicators of homosexual activity as a ‘relevant but inconclusive consideration’. It did not rely on the absence of such conduct to dismiss the applicant's claims. However, on all the evidence before it, “the circumstances and timing of the applicant's claim, his presentation of it and the inconsistency of the claimed incidents relating to the claim” led the Tribunal to conclude that it was without foundation.
The Tribunal found that the claim was “a recent invention devised solely for the purpose of enhancing his refugee claims”. It did not accept the claim and found that the applicant was not a member of such a particular social group, being homosexuals in Bangladesh and that he would not be so perceived by others. Therefore it did not accept that he had a well-founded fear of persecution for a Convention reason.
The applicant filed an application seeking review of the Tribunal decision on 31 December 2004. It raises general and unparticularised grounds: that he was not satisfied with the decision, that the Migration Act 1958 (C’th) was not observed properly, that the Tribunal deprived him of natural justice and made significant errors.
As I informed the applicant, merits review is not available in this court. No particulars are provided of the claim that the Migration Act was not observed properly. There is nothing on the material before the court to suggest that the Tribunal failed to comply with any of the procedures under the Migration Act. Nor is there anything to support the applicant's claim that he was denied natural justice.
His application indicated that there were significant errors in the decision and that he would provide details later. He did not file a written submission, but in oral submissions suggested to the court that he had failed because he had been unable to furnish any evidence. The manner in which he contends that this gives rise to jurisdictional error by the Tribunal is not entirely apparent but, in any event, his concern that he failed because he did not furnish any evidence is not in fact consistent with the Tribunal decision.
It is the case that the Tribunal discussed with the applicant whether or not he had documentary evidence to support his claimed position or involvement in the Awami League. It records that he stated that he had sought assistance from relatives in Bangladesh after receiving the invitation to the Tribunal hearing but that they had not been able to produce anything.
However, as indicated, the applicant retreated from his initial claims to have been a leader in the Awami League and the Tribunal did not accept his description of himself as an ‘activist’ on the basis of the evidence he gave as to the actual activities in which he had participated. The Tribunal also noted that the applicant retreated from his earlier statement that he was subject to false charges, to speculation that police surveillance of him must have arisen from a political agenda. In such circumstances he did not fail because he was unable to furnish any evidence. The Tribunal gave reasons which, as I have indicated, were open to it on the material before it.
As to his claims in relation to homosexuality it is the case that he did not have a witness in support of his claim before the Tribunal, however, that is not a matter that gives rise to a jurisdictional error on the part of the Tribunal. The Tribunal properly considered his claims in that regard, in particular noting that claims relating to sexuality could be largely a matter of one’s self-identity and that questions concerning actual past experience may not be conclusive or appropriate. It had regard to all of the circumstances and evidence including the timing of the claim, the presentation of it and the inconsistencies (which it described) in finding that the claim was without foundation. In this context the Tribunal must be said to have recognised the difficulty of providing corroborative evidence to support a claim of homosexuality but its conclusions in that regard were open to it on the material before it.
The applicant failed largely because of the view that the Tribunal took of his credibility. Adverse findings as to credibility are findings of fact and a matter for the Tribunal, Re MIMA, Ex parte Durairajasingham (2000) 168 ALR 407. The Tribunal findings in this respect were open to it for the reasons it gave on the material before it. The Tribunal properly considered all of the applicant's claims, but rejected the factual basis for his claims to fear persecution in the manner contended.
No jurisdictional error has been established and the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing to warrant departure from the normal rule that the unsuccessful applicant should meet the costs the respondent. The applicant indicated that he would pay the costs of $4,500 sought by the respondent if he obtained a protection visa and that he understood that if he came to Australia again he would have a debt to the Commonwealth. In those circumstances I consider that the amount sought is appropriate.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 6.5.2005
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