SZGXX v Minister for Immigration

[2007] FMCA 476

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGXX v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 476

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

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 91X, 418, 424A, 425, 425A, 483A

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant A169 of 2003 v Minister of Immigration [2005] FCAFC 8
Applicant WAEE v Minister of Immigration [2003] FCAFC 184
Attorney General (NSW) v Quin (1990) 170 CLR 1
Chan v Minister of Immigration (1989) 169 ALR 379
Minister for Immigration v Eshetu (1999) 197 CLR 611
Minister for Immigration v Lay Lat [2006] FCAFC 61
Minister for Immigration v NAMW (2004) 140 FCR 572
Minister of Immigration v Respondents S152/2003 (2004) 222 CLR 1
Minister of Immigration v SGLB (2004) 207 ALR 12
Minister of Immigration v Yusuf  (2001) 206 CLR 323
NAAP v Minister of Immigration [2003] FCAFC 76
NABE v Minister of Immigration (2004) 144 FCR 1
Paul v Minister of Immigration (2001) 113 FCR 396
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407
Seyfarth v Minister of Immigration [2004] FCA 1713
SZATG v Minister of Immigration (2004) 215 ALR 358
SZCIJ v Minister of Immigration [2006] FCAFC 62
SZDPY v Minister for Immigration [2006] FCA 627

Applicant: SZGXX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2129 of 2005

Judgment of:	Lloyd-Jones FM
Hearing date:	21 February 2007

Delivered at: Sydney

Delivered on: 5 April 2007

REPRESENTATION

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

Counsel for the Respondents: Mr J Mitchell

Solicitors for the Respondents: Ms A Radich of Blake Dawson Waldron

ORDERS

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

2. The application filed on 10 August 2005 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

SYG2129 of 2005

SZGXX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 10 August 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 29 June 2005 and handed down on 19 July 2005, affirming a decision of the delegate of the first respondent made on 23 March 2005, refusing to grant the applicant a protection (class XA) visa. The applicant seeks relief against the decision of the Tribunal.

2. The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGXX”.

3. A Court Book ("CB") prepared by the first respondent's solicitors was filed on 10 October 2005.  It was marked Exhibit “A” and was read into evidence.

Background

1. The Tribunal decision of Antoinette Younes, reference N05/51046, provides the following background information.  The applicant, who claims to be a citizen of the Philippines, arrived in Australia on

   
   

   7 January 2005. On 2 February 2005, she lodged an application for a protection (class XA) visa with the Department of Immigration under the Act.  On 23 March 2005, a delegate of the Minister refused to grant a protection visa and on 15 April 2005, the applicant applied to the Tribunal for a review of the delegate's decision.(CB 89)

2. In the application for a protection visa, the applicant claimed that:

   a)When she was in the Philippines, she had a sexual relationship with another woman whose parents disapproved of the applicant.  The parents of the partner threatened the applicant and hired people to harm her.  She received death threats every day.  Before she left the Philippines, a man "poked gun on my head".

   b)Australia accepts homosexuality, unlike the Philippines.  She was "judged and criticised" not only by her partner's parents but also by her own community.

   c)If she were to return to the Philippines, she would be killed by the partner's parents.

3. In support of the application for review, the applicant provided a statement dated 14 April 2005 in which she claimed that:

   a)She commenced having a secret relationship with her partner in 1980 whilst they were in high school.  The partner’s parents asked them to stop their relationship but they refused.

   b)The partner was later forced to marry the son of a family friend, however they continued their relationship.  The partner and her husband went to London and she and the applicant maintained telephone contact.  The partner was to return to the Philippines once a year to see the applicant.

   c)The partner’s parents and husband discovered the promises and started to harass and threaten the applicant.  One day, a note was left on the car telling the applicant to stay away from the partner.  The windshield of the car was broken.

   d)Every time the partner visited the Philippines there had been trouble.  The partner told the applicant to come to Australia and she would follow her.  They knew that same sex relationships were accepted in Australia.

Tribunal’s findings and reasons

1. A summary of the Tribunal's reasons was contained in the first respondent's written submissions prepared by Mr Mitchell, and I adopt paragraph 4 of those submissions:

   4.1    The RRT member made the following findings:

   (a)   She was satisfied that the Applicant was a homosexual who was in a long relationship for many years.

   (b)   She was satisfied that the family of the Applicant's partner did not approve of their relationship and that it was plausible that on one occasion she was threatened with a gun by her partner's brother.  The RRT member was satisfied that authorities took appropriate action in response to that threat.

   (c)   She was not satisfied that the Applicant was stabbed or that she injured her arm in any altercation with her partner's family.

   (d)   She was satisfied that the harm the Applicant feared was solely because of her relationship with her partner and not because she is a homosexual in the Philippines.

   (e)   She was satisfied that any harm that the Applicant feared was directly attributable to a private dispute with her partner's family and as such did not invoke the application of the Convention.

Application for review of the Tribunal’s decision

1. On 10 August 2005, the applicant filed an application for review under s.39B of the Judiciary Act.  In accordance with leave granted at the first Court date hearing, the applicant filed an amended application on 9 November 2005, which contained the following grounds of review:

   1.That the Refugee Review Tribunal failed to comply with section 424A of the Act and, in doing so, made a jurisdictional error.

   2.That a breach of the rules of natural justice and procedural fairness occurred in connection with the making of the Decision.

   3.That the Decision involved an error of law, whether or not the error appears on the record of the Decision.

   4.That the Tribunal ignored relevant material, asked wrong questions and relied on irrelevant material in making of the Decision.  This amounts to a jurisdictional error.

   5.That procedures that were required by law to be observed in connection with the making of the Decision were not observed.

   Particulars

   a)    The Refugee Review Tribunal made reference to independent country information available to the Tribunal.  It is envisaged from the Tribunals’ decision that the conclusions reached by the independent evidence apparently were used to support the conclusion of the Tribunal in my application.  Given that such information forms part of the reason(s) of the Tribunal, the Tribunal ought to have informed me in advance of its intention to rely, at least marginally, on the independent evidence to determine my own matter.  The Tribunal has therefore failed its natural justice obligation and consequently, failed to comply with s 424A of the Migration Act.

   b)    The Refugee Review Tribunal misconstrued the meaning of the term "refugee" in that it failed to consider whether the authorities were willing to provide protection to me in circumstances where I claimed that the police failed to investigate my claimed stabbing by my persecutors.  The Tribunal also failed to investigate my claims that the police gives preferential to certain classes of people; and that they are unwilling to protect me if I were to go back to the Philippines.

   (c)   The Refugee Review Tribunal also fell into jurisdictional error by failing to consider whether the need to live elsewhere in the Philippines other than my usual place of abode to avoid any threat of serious harm by my persecutors constituted persecution.

   (d)   The Refugee Review Tribunal erred in law by failing to consider whether in spite of the fact that the independent country information indicates that homosexuality is lawful in the Philippines and that homosexuals are free to practise, the community at large and individual families accept the practise of homosexuality.

   (e)   The Refugee Review Tribunal failed to complete its jurisdiction by failing to find that the continuous and persistent denial of my rights and threats to my life and liberty may constitute persecution for the purposes of the Refugee Convention.  The Tribunal also failed to find that I suffered psychologically and emotionally as a result of the actions of my persecutors; thereby facing persecution because of my homosexuality.(copied without alteration or correction)

Submissions and reasons

1. The applicant appeared before me as a self represented litigant with the aid of a Filipino/Tagalong interpreter.  When the applicant was invited to make any oral submissions in support of her application she indicated that she would rely upon her amended application and written submissions.  The applicant, in her amended application, has identified five grounds of review together with five separate particulars.  These particulars appear to have been pleaded as general particulars in respect of all five grounds. 

2. The applicant's written submissions, upon which she relies, take an alternative approach, identifying three grounds of review.  This is followed by more comprehensive submissions, which in turn are divided into two categories.  These categories generally relate to the three identified grounds.  However, the submissions introduce a number of new issues, which are not specifically referred to in the grounds raised in the amended application, or the three grounds identified within the submissions.

3. Mr Mitchell, for the respondents, adopted a more traditional approach by addressing each of the five grounds identified in the amended application, considering the particulars that are relevant to that specific ground.  I will return to Mr Mitchell's more detailed submissions and supporting authorities below.

4. The three grounds identified by the applicant in her written submissions, which appear to be a more generalised approach than the amended application, are as follows:

   (a)The Refugee Review Tribunal exceeded its jurisdiction in failing to accord me procedural fairness as required under section 424A(1) of the Migration Act 1998. The tribunal denied me procedural fairness/natural justice.

   (b)The decision relied upon generalised "Country Information" rather than specific information related to me and did not give me a real opportunity to comment on that information that was considered by the tribunal before arriving at their decision.

   (c)The tribunal failed to act in a bona fide manner in relation to making of their negative decision.  The tribunal relied upon general information about the freedom of homosexuals in the Philippines to practise freely without relying upon specific issue in lodging the application for protection.

5. The applicant in her written submissions under the heading ‘Procedural Fairness and/or Natural Justice Issue’ claims that:

   The documents and evidence provided by me are reflecting the true nature of persecution that I claimed.  My oral evidence made before the tribunal member was true and correct.  In the absence of clear evidence of lacking of substance, the Tribunal is obliged to verify its authenticity of the documents and evidence made by me otherwise through official channels before calling it into question (Singh v Minister for Immigration and Ethnic Affairs (1996) 42 ALD 271 at 273 cf Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284 at 291).  Even if that is not the case, there may be circumstances where the failure of the Tribunal to verify documents/evidence in such a manner results in a failure of the Tribunal to discharge its obligation to act according to substantial justice and the merits of the case: Minister for Immigration and Ethnic Affairs v Singh at (1997) 144 ALR 284 at 290.

   Additionally, the Tribunal was bound by section 424A of the Act to particularise its potential finding on this issue to me and give me an opportunity to comment on these findings. This is because the Tribunal's view on this information is not derived from any existing information and subsequently is formed from new information, the substance of which should be put to me is a manner consistent with section 424A. It is appropriate that this section be read in this broad manner, as section 422B of the Act purports to limit natural justice requirements to that stated in that particular division (4) of the Act. As “natural justice" should not be exercised lightly from review of administrative law decisions, it is appropriate that the contents of Division 4 of the Act should be read broadly. Furthermore, section 422B is not effective in excluding from the Act administrative law requirements of natural justice. This is because an error in law that takes the Tribunal outside of its jurisdiction is outside the contemplation of section 422B (see Re Minister for Immigration and Multicultural Affairs: Ex parte Miah (2001) 206 CLR 57; 179 ALR 238 at [99], [104], [143], [196]. Accordingly the failure of the Tribunal to give me an opportunity to respond to its concerns in relation to the documents constituted a denial of procedural fairness and/or natural justice such as to be reviewable by this Court.

   Again, notions of basic fairness require that the Tribunal, before making a finding of dishonesty (the Tribunal not accepting my evidence in relation to the scars on my body and the police refusing to assist me) that would be destructive of a party's case, give that party the opportunity to address that issue in their evidence and in their submissions (Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370; 54 ALD 654 at 666. The failure to afford such an opportunity is indicative of a breach of section 420(2)(b) of the Act on behalf of the Tribunal (Meadows, above, at 666). The same argument, in relation to natural justice, is applicable to the use by the Tribunal of the “country information". I should have been given an opportunity to respond to that information.(copied without alteration or correction)

6. The second major submission contained in the applicant's written submissions relates to ‘Improper Use of Evidence’: 

   The Tribunal's adverse findings in relation to the practice of homosexual and further persecution fear by me were not supported by any positive evidence. As such, the rejection of my claim for refugee status was marred by the failure to follow proper procedures as required by law (Meadows, above at 670). Accordingly, the Tribunal exceeded its jurisdiction and the matter should be remitted to the Tribunal for re-determination. The Refugee Review Tribunal failed to follow proper procedure and erred in law and denied me natural justice. The member of the Refugee Review Tribunal failed to ascertain my persecution and decide my case that any proper evidence and inquiries by the DFAT, Australian High Commission in the Philippines. The Refugee Review Tribunal neither took into account my statement of events nor refers any reference in connection with my active homosexual activities, which is clear denial of Natural Justice Issue. The Tribunal erred at law in failing to consider my subjective state of mind in considering whether or not I had a well founded fear of persecution. The state of mind which exists in a well-founded fear of persecution comprises both an objective and a subjective element. Failing to consider one of those elements is an error of law because the Tribunal has not properly performed its duty in ascertaining whether or not I satisfies the criterion under section 36(2)(a) of the Act.(copied without alteration or correction)

7. The applicant's written submissions then raise two new issues, which are not contained in either the amended application or within the grounds identified at the beginning of these submissions.  I will return to those issues below.

8. Mr Mitchell, in his written submissions, addresses the grounds raised in the amended application. In respect of ground one and particular (a), the Tribunal decision was based on the applicant's written application for review, her oral testimony and independent country information. In that respect the information conveyed by her application and oral testimony was given by the applicant for the purposes of the review: s.424A(3)(b); SZDPY v Minister for Immigration [2006] FCA 627 at [35]. In respect to the independent country information, that was information that was not specifically about the applicant and accordingly satisfied s.424A(3)(a):  Minister for Immigration v NAMW (2004) 140 FCR 572; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.

9. In respect to grounds two and five, the Tribunal complied with the ‘procedural code’ in Division 4 of Part 7 of the Act. Specifically, the Tribunal invited the applicant to the hearing in accordance with ss.425 and 425A and the applicant attended that hearing. As stated in [16] above, the Tribunal complied with s.424A. That being the case, the Tribunal was not subject to any further obligation arising from the common law natural justice hearing rule: Minister for Immigration v Lay Lat [2006] FCAFC 61 at [66]; SZCIJ v Minister of Immigration [2006] FCAFC 62 at [8].

10. It is submitted that in respect to ground three, the applicant has not, aside from particular (d), particularised any error of law that would give rise to jurisdictional error.  The inferences drawn by the Tribunal member were clearly open to her on the material before the Tribunal and accordingly there is no error of law, let alone jurisdictional error:  Attorney General (NSW) v Quin (1990) 170 CLR 1 at 34-36; Minister for Immigration v Eshetu (1999) 197 CLR 611 at [127]; NAAP v Minister of Immigration [2003] FCAFC 76 at [42]. In respect to particular (d), the applicant acknowledged that it was lawful to openly practise homosexuality in the Philippines and that she did not fear harm at the hands of anyone else but her partner's parents.(CB 93.4 and 94.10)

11. Having made those concessions, it was open to the Tribunal to find that her fears were attributable to a private dispute.  Further, having made the above concessions, there was no material before the Tribunal that went to the issue of whether the community at large and individual families accepted the practice of homosexuality.  The issue as to whether the applicant had a well founded fear for reason of her membership of a particular social group, namely, homosexuals in the Philippines, did not squarely arise on the material before the Tribunal and the Tribunal member was not required to speculate about such a claim:  NABE v Minister of Immigration (2004) 144 FCR 1 at [55]-[63]. Accordingly, the Tribunal was not obliged to consider such an issue, nor was it obliged to make enquiries of the Tribunal or otherwise on such an issue: Minister of Immigration v SGLB (2004) 207 ALR 12 at [1], [42] and [43]; Seyfarth v Minister of Immigration [2004] FCA 1713 at [95]; SZATG v Minister of Immigration (2004) 215 ALR 358 at [36].

1. Mr Mitchell submits that in respect to ground four, particular (b), the Tribunal member made findings that the applicant's claim to have been stabbed on one occasion and injured on another, were embellishments to enhance her claim and she was not satisfied that the events occurred.  Accordingly, it was not necessary to consider whether the police were reasonably effective and impartial in respect to these incidents: Minister of Immigration v Respondents S152/2003 (2004) 222 CLR 1 at [9], [26] and [27]. In respect to the other incident of harm, namely the threat from the brother of the applicant's partner, the Tribunal made a finding that the authorities took appropriate action. There was no other evidence that suggested that the police were not effective or impartial in respect to homosexuals in the Philippines. Accordingly, the Tribunal was not obliged to consider state protection in the context of such a private dispute in the absence of material that indicated the state was ineffective or discriminatory in their policing of crimes against homosexuals in the Philippines: Minister of Immigration v Respondents S152/2003 at [26].

2. Mr Mitchell submits that in respect to ground four and particular (c), the Tribunal was not obliged to consider relocation in the context where it was not satisfied that the applicant had a well-founded fear of persecution for Convention reasons.

3. In respect to ground four, particular (e), the Tribunal member considered the applicant's claim and was not satisfied that many of the events claimed to have given rise to the applicant's fear had occurred.  In respect to those events that the Tribunal member accepted had occurred, she found that the authorities responded appropriately.  Ultimately, the Tribunal member found that the claims to past persecution had no Convention nexus because they were in a nature of a private dispute.  This finding subsumed all of the evidence before the Tribunal and the Tribunal is not required to make findings in respect to each and every piece of evidence in those circumstances: Minister of Immigration v Yusuf (2001) 206 CLR 323 at [68], [87]-[97]; Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Applicant A169 of 2003 v Minister of Immigration [2005] FCAFC 8 at [24]; Applicant WAEE v Minister of Immigration [2003] FCAFC 184 at [46] and [47]; Paul v Minister of Immigration (2001) 113 FCR 396 at [78]-[79]. In any case, the claims to have suffered psychological and emotional harm do not squarely arise from the material before the Tribunal member and the she was not required to speculate about such matters: NABE v Minister of Immigration.  It was for the applicant to satisfy the Tribunal member of such matters: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].

4. As referred to above, the applicant in her written submissions, raised two new issues which were not previously addressed in the amended application or within the three grounds set out in her written submissions.  They are firstly, the Tribunal erred in law in determining that she did not fall within a class of persons constituting "convention reasons persecution" for the purposes of Article 1A(2) of the Refugees Convention.  Further, the Tribunal failed to understand the Convention based persecution as per Chan v Minister of Immigration (1989) 169 ALR 379 at [11] where His Honour Mascon CJ stated:

   …the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns.

5. The applicant claims “there is no need to be high profile or low profile political involvement”. The applicant argued that the Tribunal rejected her claim as a private dispute and failed to take into account the documents and evidence provided by her in her protection visa applicant. The Tribunal failed to understand that she was a member of a particular social group (homosexual) and the persecution was fully Convention based under Article 1A(2) of the Refugees Convention. Therefore, the Tribunal exceeded its jurisdiction in failing to accord procedural fairness as required under s.424A(1) of the Act. The applicant argues that the Tribunal member did not consider her evidence and the Tribunal decision was affected by error of law, lack of procedural fairness and denial of natural justice.

6. I am satisfied that Mr Mitchell in his submissions at [22] above addressed this issue and it does not require further clarification.

7. The second issue raised by the applicant is that the Tribunal denied her of natural justice and procedural fairness at that time of deciding the matter under s.418(3) of the Act. The Secretary of the Department did not comply with s.418(3), because they failed to give the Registrar of the Tribunal documents in their possession or control, namely documents the delegate relied upon to decide the protection visa application. The Tribunal did not put to the applicant its doubts about documents containing information personal to the applicant from different sources, which doubts form part of the reasons for the Tribunal’s decision.

8. In the Tribunal's decision under the heading ‘Claims and Evidence’, the following information is recorded:

   The Tribunal has before it the Department's file, which includes the protection visa application and the delegate’s decision record.  The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.(CB 91)

9. The delegate’s decision under ‘Part B: Evidence Before Me’, indicates that the delegate had the Departmental file CLF 2005/11485 relating to the applicant.(CB 34) On the information before this Court, the Tribunal appears to have been supplied by the Secretary of the Department with all of the material relevant to this matter. There is no indication that any material within ‘Part B’ of the applicant's primary visa application has not been provided to the Tribunal member. A fair reading of the Tribunal's decision under ‘Findings and Reasons’ indicates that the Tribunal accepts the applicant's homosexuality and that she has had a relationship with another woman since 1980. Further, on the applicant's own admission, she states that she does not fear anyone else in the Philippines other than her partner's family. She also acknowledges that it is lawful to openly practise homosexuality in the Philippines and that she does not fear harm as a homosexual in the Philippines. It is on that basis that the Tribunal came to the conclusion that it was not satisfied the applicant has a well-founded fear of persecution for a Convention-related reason, and that the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

Conclusion

1. The applicant appeared at this hearing as a self represented litigant and although assisted by a Filipino/Tagalog interpreter, she was able to make her own statements from the Bar Table in fluent English.  Only on a limited number of occasions did the applicant require the assistance of the interpreter.  The applicant, with the assistance of an unidentified third party, has prepared both an amended application and detailed written submissions, supported by authorities.  All of the issues raised in these documents have been addressed and satisfactorily answered in the written submissions prepared and relied upon by Mr Mitchell, appearing for the respondents.

2. I am satisfied that none of the grounds identified can be sustained.  Neither is it apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision making process.  The substantial thrust of the applicant's claim was conceded by her before the Tribunal when she acknowledged that homosexuality could be openly and lawfully practised in the Philippines.  Further, that she does not fear harm as a homosexual in the Philippines from anyone other than the family of her long time partner.  Consequently, the applicant's claim should be dismissed.

3. I am satisfied that an order for costs should be made in this matter.  I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  4 April 2007