SZGPS v Minister for Immigration
[2006] FMCA 1950
•19 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGPS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1950 |
| MIGRATION – Review of Refugee Review Tribunal decision – fear of persecution based on sexual orientation – application dismissed. |
| Migration Act 1958 (Cth), ss.424, 424A, 430, 422B, 474 |
| SZDMJ v Minister for Multicultural and Indigenous Affairs (2005) FCA 1034 Tin v Minister for Immigration and Multicultural Affairs (2000) FCA 1109 |
| Applicant: | SZGPS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1688 of 2005 |
| Judgment of: | Turner FM |
| Hearing date: | 19 December 2006 |
| Date of last submission: | 19 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2006 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Mr L. Leerdam of DLA Phillips Fox |
ORDERS
That the name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
All applications in the matter are dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1688 of 2005
| SZGPS |
Applicant
And
| MINISTER FOR IMMIGRATION &MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 29 June 2005 seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 21 September 2005 and a further amended application on 19 October 2005.
The applicant was born on 13 February 1976 and claims to be from Bangladesh and of Bangladeshi ethnicity and Islamic faith. The applicant arrived in Australia on 5 September 2005 on a passport issued in his name in Bangladesh on 7 April 2004. His protection visa application does not contain specific details pertaining to the visa on which he arrived. The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 11 October 2004. In this application he claimed that as a homosexual in an Islam country he faced the risk of substantive human rights abuses if he were to return to Bangladesh (Court Book “CB” at page 42)
The applicant claimed that he and his partner had previously been forced to leave Bangladesh after their families discovered their relationship and they have been harassed by both family members and people in the community. The application was refused by a delegate for the first respondent on 17 December 2004.
On 17 January 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on 12 May 2005 at which time he maintained the claims made in his original protection visa application.
On 14 June 2005, the Tribunal handed down its decision dated 25 May 2005 affirming the decision of the Minister’s delegate refusing to grant the application for the applicant a protection visa. In considering the applicant’s claims, the Tribunal made a number of findings as follows:
On the basis of the Bangladeshi passports the applicant presented to the Tribunal it finds that the applicant is a national of Bangladesh.
The applicant gave his evidence in a softly spoken and pleasant manner. However, his evidence was general and vague at times, many of his claims were not plausible, he contradicted himself on a significant matter and changed his evidence.
The applicant claims that Mr. Uzzal was his partner and that they had a homosexual relationship for 7 years. Yet the applicant’s evidence about his feelings for Mr. Uzzal and what he liked about Mr. Uzzal was general, vague and hesitant. Asked to describe his feelings for Mr. Uzzal the applicant replied that they liked and loved each other. Invited to tell the Tribunal what it was that he liked about Mr. Uzzal, the applicant repeated that he liked and loved Mr. Uzzal before adding that he liked the way Mr. Uzzal moved, ate, and dressed. The applicant did not seem genuine in giving this evidence, it did not appear that he was expressing feelings and thoughts that he actually had towards Mr. Uzzal. Asked to describe which of Mr. Uzzal’s qualities he liked, the applicant referred to Mr. Uzzal’s heart and that he was a brilliant student. Again the reference to Mr. Uzzal’s heart was not specific and Mr. Uzzal’s academic excellence did not relate to the period of the 7 year relationship. The Tribunal’s open questions were intended to elicit the applicant’s feelings about a man he claimed to have been in an intimate relationship with for 7 years, a man that the applicant left his family and homeland for. The Tribunal expects that he thus would have been able to provide more detailed responses to its questions. When the Tribunal queried why he was being so general, the applicant said he was shy about what he found attractive about Mr. Uzzal. After being reassured by the Tribunal, the applicant stated that Mr. Uzzal was honest, of good character and that the applicant enjoyed what they did together. Describing Mr. Uzzal as an honest and good person is as vague as the earlier responses he gave and the Tribunal sees nothing inherently embarrassing about expressing these matters. The Tribunal has considered whether the applicant’s statement that he was shy about explaining what he liked about Mr. Uzzal, affected his ability to be more forthcoming. However the Tribunal had not asked the applicant about the sexual activities he and Mr.Uzzal engaged in either directly or indirectly. It had asked about the applicant’s feelings towards Mr. Uzzal and Mr.Uzzal’s personal traits. The Tribunal does not accept that the applicant’s general responses were due to some embarrassment on his part. The matters raised by the Tribunal may well not be matters which the applicant had discussed often or openly with others, but neither were they highly intimate nor could the applicant have found the questions strange given the nature of his claims. Further, the Tribunal considers it reasonable to expect someone who claims to have been in a sexual and loving relationship with a person for 7 years to be able to describe with some degree of specificity the feelings they had for that person and the appealing qualities that person possessed (CB 115).
The applicant was vague and evasive about another significant aspect of his claims – the harm he faced in Bangladesh because of his homosexuality. To elicit information about what he feared would happen to him besides being harmed by his family, the Tribunal asked the applicant whether he could live away from his family in Bangladesh to which the applicant simply replied that homosexuality was not accepted by Bangladesh society. Given the general response, the Tribunal asked more specifically what would happen to him but the applicant focussed again on people who would know him. Asked what would happen to him if he went to an area where he was not known, the applicant failed to respond with any detail and merely repeated that it was not acceptable to his family or society. Even when the Tribunal said it wanted to know specifically how he would be harmed, the applicant once again failed to give any detail whatsoever saying that his problems would be the same wherever he went. The Tribunal’s question was a straightforward one which went to the heart of the applicant’s claim that he is a refugee – that is, what it is that he fears in Bangladesh. The Tribunal expects that if a person genuinely fears persecution that they would be able to clearly express the nature of that persecution. The applicant did not appear to be an unintelligent man who could not understand the basic questions being asked of him rather his vague responses indicated to the Tribunal that he could not be specific and was being evasive because he was not speaking about a personal fear he actually held (CB 116).
In his written statement the applicant clearly indicated that he and Mr. Uzzal were friends before there relationship became sexual. His oral evidence was consistent with that. However, he contradicted himself during the hearing about when the relationship became sexual. Early on in the hearing the Tribunal had specifically asked when the relationship changed from one of friendship to a sexual one. The applicant replied without any hesitation and quite confidently that it was 1996. Although that was some time ago the Tribunal was not surprised that he could recall the year as it was the same year that the applicant claimed his grandfather had discovered the applicant and Mr. Uzzal having sex – a significant event which the Tribunal expects would have stuck in the applicant’s mind. Asked to estimate how long he and Mr. Uzzal had been having sex before they were discovered, the applicant replied that he could not specify the date but it was about a month or a month and a half before they were discovered in December 1996. During this evidence the applicant did not seem confused about either the Tribunal’s question nor was his evidence given in a confusing manner. Quite the contrary he replied to the Tribunal’s questions in a straightforward manner and seemed quite assured in giving that evidence. However, later in the hearing when the Tribunal put an issue to the applicant based on his evidence that he and Mr. Uzzal had started having sex about 1 month before they were discovered by his grandfather, the applicant claimed that there had been a misunderstanding and that he and Mr. Uzzal had started having sex in 1994/95 and had told his grandfather that they had been having sex about a month before they were discovered. The Tribunal does not accept that there was any mistake or misunderstanding. Its earlier questioning about when the applicant and Mr. Uzzal started having sex were very clear and the applicant’s responses did not seem the slightest bit hesitant or confused. The Tribunal believes that the applicant alleged an error had been made and changed his evidence when the Tribunal put an issue to him that could have undermined his claims (CB 116).
The Tribunal does not find it plausible that if the applicant’s family considered his relationship with Mr. Uzzal unacceptable and his family wanted to harm him because of it, kill him in fact, that his grandfather would have arranged for the applicant and Mr. Uzzal to leave Bangladesh together rather than break them up, sending just the applicant or Mr. Uzzal away. The Tribunal does not find the explanation the applicant gave when this was put to him convincing. He indicated that his family wanted him to have peace and thought if he and Mr. Uzzal left, the comments by others would stop. This account of his family’s attitude is different to the one the applicant had given up to that point, that is, that they wanted to kill him because he was a homosexual and considered his homosexual activity forbidden. There was no indication prior to that point that the applicant’s family felt any sympathy for him or was willing to accommodate his homosexuality if it made the applicant happy. This appeared to be another occasion on which the applicant amended his evidence in an attempt to overcome a matter which seemed to undermine his story. That suggests that the applicant was not being truthful in his oral evidence (CB 117).
The Tribunal does not consider it plausible that the applicant would have returned to Bangladesh in January 2005 if his claims were true. He suggested that he returned because he thought his family might accept his relationship and because he had feelings for his family and homeland. The applicant had to leave the country in 1997 with Mr. Uzzal and during that time had not had any contact with his family which suggested there had been no change in their attitude or any improvement in the applicant’s relationship with his family in over 7 years. If the applicant had hoped for some reconciliation, the Tribunal does not find it plausible that he would not have simply written or telephoned his family to see whether their attitude towards him had changed rather than actually return to Bangladesh. The applicant said he heard about his family through others and that his grandfather had died but that does not explain why he did not simply contact his family himself from Saipan and determine their current attitude toward him and assess whether it was worthwhile returning to Bangladesh. Furthermore, the applicant also claims to fear harm from society generally, he said that he could not live anywhere in Bangladesh because he would face problems. Thus, it is not plausible that he would return to Bangladesh even if his family accepted as he would face harm from others (CB 117).
When the Tribunal put to the applicant that it seemed remarkable that he thought of going to Australia from Bangladesh without returning to see Mr. Uzzal and say goodbye to his partner of 7 years, the applicant stated that he had been in contact with Mr. Uzzal and Mr. Uzzal had told him to go. However, this is not consistent with the fact that instead of going to Australia after he got his new passport, the applicant returned to Saipan. Asked to explain this, the applicant said he did not want to risk being refused a s he had been in Hong Kong. The Tribunal does not find that believable. The applicant’s claim that he was turned away in Hong Kong because his picture did not match his appearance is plausible. However, given he obtained a new passport with an updated photograph, there was no reason for him to believe that he would be stopped again for that reason. There was no other apparent reason nor was one offered by the applicant why he would have any other problem travelling to Australia from Bangladesh. Further, if the applicant thought it safer to leave for Australia from Saipan then the Tribunal expects he would have left Saipan shortly after returning there yet he did not and stayed another five months. This indicates that the applicant was simply making up his responses as he went along in responses to matters that seemed to undermine his claims (CB 118).
Individually, the above matters would not lead the Tribunal to make an adverse credibility finding. However, considered cumulatively, they have led the Tribunal to conclude that the applicant was not a credible witness and that he invented his claims. Thus, The Tribunal does not accept he was or is a homosexual. Consequently, the Tribunal finds that the applicant does not have a well-founded fear of persecution in Bangladesh for a Convention reason (CB 118).
The Tribunal affirms the decision not to grant a protection visa (CB 118).
The applicant then filed the application in this court seeking judicial review of the Tribunal’s decision pursuant to the Migration Act. In his application, the applicant set out one ground, namely, that the Tribunal decision was infected by jurisdictional error. The applicant also documented five particulars in support of this ground.
In his amended application the applicant again set out the same ground but amended two of its particulars. The particulars included the following:
a)“That the Tribunal did not comply with the mandatory obligations contained in section 424A of the Migration Act
b)“That the Tribunal reference includes cases” as referred to (Those cases were cited in the decision of the Tribunal at pages 99 and 100 of the court book).
The third particular in the amended application is that “the Tribunal did not ensure, as far as reasonable (sic), practicable, or at all, that the applicant understood why all those abovementioned references and information were relevant to his Refugee Review Tribunal application as required by section 424A(1)(b) of the Migration Act.” The Court finds that those case references were not covered by s.424A(1)(b) and therefore s.424A has no application.
The next particular is that “the Tribunal did not give the applicant notice of the particulars of the information or references in the manner required by ss.424A(1)(a) and 424(2) of the Migration Act.”
The next particular is “the Tribunal cited only a part of some old reports and references to reach a decision to the applicant’s application whereas the applicant applied for protection visa in Australia with his homosexual lifestyle to consider his protection visa application”. The final particular is that “the Tribunal generalised the applicant’s claims with others simply to reject the application in a conventional way. The applicant believes that those case references cited in deciding his application were probably used in many cases just to reject an application without even proper verification or giving sufficient gravity of his claims or considering any other substantial relevant materials.”
The applicant’s further amended application contains three grounds which are as follows: “whether the Tribunal failed to comply with the obligation under section 424A of the Migration Act.” The applicant’s second ground is “whether the Tribunal’s mistake to see the date of the documents indicates that the Tribunal did not put attention to assess my claim and its mind was preoccupied at the time of the hearing how to reject my claim and this constitutes procedural unfairness.”
A particular appears under that ground in the further amended application and the court took the applicant to the last five lines of that particular as follows:
Besides that the Tribunal also claimed that its question was straight forward. In page -18, paragraph -2, line -12, the Tribunal mentioned that “The Tribunal’s question was a straightforward one which went to the heart of the applicant’s claim that he is a refugee” but that was not true in light of the previous mistake.
The Court asked the applicant what was meant by those assertions and the applicant answered that “he was not able to say as that was written by someone else and he did not understand it.”
The third ground in the further amended application is “whether the Tribunal failed to comply with section 430 Division 5 Part 7 of the Migration Act 1958, not referring the evidence and material on which the findings are based”. Section 430 was then set out in the further amended application.
The Court finds that it is clear from the Tribunal’s decision (Court Book at page 118) that the Tribunal based its decision on its finding that the applicant was not a credible witness and that he invented his claims. The Tribunal found that the applicant simply made up his responses as he went along. That finding appears at the bottom of the first paragraph on page 118 of the court book. The Tribunal found that the applicant invented his claims. The Tribunal did not accept that he was or is a homosexual (CB 118).
The Court finds that those findings of fact were properly open to the Tribunal on the evidence before it, after having heard oral evidence from the applicant on 12 May 2005. They are findings of fact that are not open to review by this Court as they were properly open to the Tribunal on the evidence before it.
As to the application filed on 29 June 2005, it alleges a breach of section 424A of the Migration Act. The applicant alleges that the Tribunal had regard to a number of decisions in deciding to affirm the decision of the delegate. The Court finds that those decisions were not the basis or part of the basis for rejecting the applicant’s claim. They are merely High Court authorities in which the term refugee has been considered. That is not, “information” to which section 424A applies. The Court finds no error of law or denial of natural justice and rejects that ground.
The amended application dated 21 September 2005 repeats the allegation that the Refugee Review Tribunal breached section 424A and refers to the cases referred to in the application. The Court rejects this ground for the same reasons given for rejecting the ground in the application.
In the further amended application filed 19 October 2005, ground one alleges a breach of section 424A in relation to independent country information. Such information is exempt from 424A(1) by 424A(3)(a) as it was not specifically about the applicant or another person. Therefore, 424A does not apply to that information. The Court finds no breach of section 424A involved in that ground.
As to the allegation that the Tribunal relied on information that was in the protection visa application or passports, the Court finds that the applicant put all that information before the Tribunal. Therefore, any information that the Tribunal may have relied on fell within the exception in 424A(3)(d) of the Act which states that:
This section does not apply to information that the applicant gave for the purpose of the application.
The Court finds no breach of section 424A.
Insofar as the Tribunal relied on information put before the delegate, the applicant republished his claims put to the delegate as he presented a critical examination of the delegate’s reasons and referred to material in his statement which accompanied his application for a protection visa (CB pp. 42-46). The Court finds that no breach of section 424A was involved. In doing so it relies on and refers to the decision in SZDMJ v Minister for Multicultural and Indigenous Affairs (2005) FCA 1034.
Insofar as the Tribunal relied on information from the two passports, that information was republished by the applicant before the Tribunal and the Court finds no breach of section 424A was involved. The Court applies the decision in M55 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 131. That ground is rejected by the Court.
The Court finds that the Tribunal was not under any obligation to put matters such as the ultimate findings and reasons of the Tribunal to the applicant for comment. The failure to do so did not constitute a breach of procedural fairness nor a breach of section 424A. The term “information” in section 424A does not include the Tribunal’s objective evaluation of the evidence before it and the conclusions it reached.The Court applies the decision in Tin v Minister for Immigration and Multicultural Affairs (2000) FCA 1109 and the decision in Paul v Minister for Immigration and Multicultural Affairs 64 ALD 289. The Court rejects those complaints by the applicant.
In his written submissions, the applicant refers again to some of the cases which are referred to in his application and also in his amended application and the applicant says s.424A was breached in relation to those authorities. This submission is rejected for the same reasons the Court gave for rejecting that ground in the application in this matter.
As to the procedural fairness, the Court refers to ground 2 of the further amended application. The Court finds no evidence that the Tribunal was inattentive and preoccupied as alleged. The applicant’s adviser was present at the hearing before the Tribunal and there is no indication that the adviser made any complaint about how the Tribunal was conducting its hearing. Also, the decision of the Tribunal devotes eight pages to recording and reviewing the applicant’s evidence. The Court does not accept that the Tribunal was inattentive or preoccupied and rejects this assertion.
The Court finds that the extent of natural justice to be given under the Migration Act is referred to under section 422B of that Act which is headed “Exhaustive Statement of Natural Justice Hearing Rule”. The Court finds no breach of the duty to accord natural justice and rejects this ground.
In ground 2 of the further amended application, the applicant alleges that the inattentiveness and preoccupation indicated bias. This allegation relates to a mistake about how many months the applicant spent in Bangladesh in 2004. That mistake was corrected at the hearing as referred to at court book page 111 in the third paragraph.
The applicant also alleges bias resulting from a question recorded at court book page 111as to why it took him four months to realise that his family did not accept his homosexuality. The applicant alleges that the finding of the Tribunal on page 115 of the Court Book that the “question was a straightforward one which went to the heart of the applicant’s claim that he is a refugee”, was not true in light of the previous mistake. The Court notes that this comment by the Tribunal refers to the question of how the Applicant alleges he would be harmed in Bangladesh. The Court finds no bias and it rejects this allegation. The oral submissions of the applicant allege bias in the way the Tribunal tested the applicant’s credibility. The Court does not accept that a rigorous testing of an applicant’s credibility shows bias or grounds for a reasonable apprehension of bias, and the Court applies Re Refugee Review Tribunal and Another; ex parte H and Another (2001) 179 ALR 425 at 434.
Ground 3 of the further amended application alleges a breach of section 430 of the Migration Act. Section 430 requires the Tribunal to set out its decision, its reasons, its finding on material facts and to refer to the evidence on which findings of fact are based. The Court finds that the Tribunal complied with section 430. The Tribunal set out its findings on the applicant’s claims and its reasons for reaching those findings clearly. It set out its findings of fact and the evidence on which they were based. There was no breach of section 430 of the Act. There was no denial of natural justice or error of law. Ground 3 is rejected.
The finding as to credibility was properly open to the Tribunal, and those findings are not open to review in the circumstances of this case. The Court therefore rejects all the grounds alleged in the application, the amended application and the further amended application. The Court finds that the Tribunal’s decision is a privative clause decision that has not been affected by jurisdictional error. In such circumstances, and pursuant to section 474 of the Act, there is no jurisdiction for this Court to interfere. Accordingly, all applications by the applicant in this matter are dismissed.
The Court orders that the applicant pay the first respondent’s costs of $4,300.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 23 January 2007