SZGYV v Minister for Immigration
[2007] FMCA 280
•7 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGYV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 280 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Pakistan as a homosexual – whether the Tribunal proceeding was unfair, whether the Tribunal overlooked a claim of religious persecution, whether the Tribunal breached s.424A of the Migration Act 1958 (Cth) and whether it dealt properly with a psychologist’s report considered. |
| Migration Act 1958, ss.91R, 422B, 424A |
| ARAS v Minister For Immigration (1998) 50 ALD 797 Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 Chand v Minister for Immigration (unreported, Full Federal Court, 7 November 1997) Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 SZBEL v Minister for Immigration [2006] HCA 63 SZCIJ v Minister for Immigration [2006] FCAFC 62 SZJBE v Minister for Immigration [2007] FCA 190 |
| Applicant: | SZGYV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2778 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 7 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Counsel for the Respondents: | Ms S Sirtes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Court directs that the title of the first respondent be amended to the Minister for Immigration & Citizenship.
The Court directs that the application filed on 27 September 2006 be taken to have been amended by deleting the particulars under ground 1 and by substituting as particulars:
The Tribunal relied on information derived from the first Tribunal decision which was set aside by orders of this Court in making its decision.
The Court directs that ground 4 of the application be taken to have been amended by deleting the ground and substituting the following:
The Tribunal erred by failing to consider the combined impact of the applicant’s sexual orientation and his claimed fear of persecution at the hands of religious extremists.
The Court directs that ground 5 of the application be deleted and substituted with:
The Tribunal erred in failing to accord procedural fairness to the applicant in considering his claims.
The Court directs that the application be taken to be amended by adding the following particulars to ground 5:
the Tribunal erred in failing to raise with the applicant its concern regarding the psychologist's report from Dr Salu Dean.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2778 of 2006
| SZGYV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 31 August 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The background to the applicant’s protection visa claims and the Tribunal’s decision on them are adequately summarised in the Minister’s outline of written submissions filed on 1 March 2007. I adopt with necessary amendments as background for the purposes of this judgment paragraphs 1 to 4 and 6 of those submissions:
The applicant is a (now) 33 year old Pakistani citizen who arrived in Australia on 8 January 2005 travelling on a temporary business visa (court book (“CB”) 13). On 14 February 2005 the applicant lodged an application for a protection (Class XA) visa with the then Department of Immigration & Multicultural and Indigenous Affairs (CB 1 to 26). The applicant claimed to fear persecution as a homosexual.
After a delegate of the first respondent ("delegate") refused the applicant’s protection visa application on 14 March 2005 he applied to the Tribunal on 7 April 2005 to review that decision. That Tribunal affirmed the delegate’s decision. On 14 March 2006, I remitted the matter to the Tribunal for re‑determination (CB 62).
On 15 May 2006 the applicant was invited to a hearing of the (newly constituted) Tribunal on 28 June 2006, and was informed by that invitation that the Tribunal was unable to make a decision in the applicant’s favour based on the material provided to date alone (CB 65 to 66).
The Tribunal hearing took place on 28 June 2006 during which the applicant gave oral evidence (CB 194.8). On 5 July 2006 the Tribunal wrote to the applicant in accordance with s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) seeking comment upon information it considered would be the reason, or part of its reason, for decision (CB 79 to 80). The information in question was inconsistencies between his oral evidence to the first Tribunal and his protection visa application. The applicant responded, by his adviser, on 19 July 2006 (CB 182 to 184).
The Tribunal:
a)Accepted that the applicant was a citizen of Pakistan (CB 201.8).
b)Found that the applicant’s evidence did not inspire confidence and that he had consistently and repeatedly embellished his claims from the time of the delegate’s decision (CB 201.9).
c)Found inconsistencies and omissions between the statement provided to the second Tribunal, and the evidence/claims before the first Tribunal (CB 202.3).
d)Considered the applicant’s claimed suicide attempts and the psychologist’s report submitted to the Tribunal by the applicant noting that the report did not mention any attempts of suicide. The Tribunal also noted that the report relied solely on what the psychologist was told by the applicant and had no independent sources of information. The Tribunal did not give the psychologist's conclusions any weight (CB 202.5 to 202.7).
e)Found that the documents and photographs showing a relationship between the applicant and other males and his membership of the "New Mardi Gras" were authentic but, in light of the serious discrepancies in his other claims and evidence, disregarded them on the basis that they had been acquired to strengthen his protection claims (CB 202.8).
f)Was not satisfied that the events the applicant claimed to have experienced in Pakistan had ever occurred to him. The Tribunal did not accept that:
i)the applicant is a homosexual;
ii)that he had been persecuted in any way or that harm amounting to persecution had been threatened by reason of him being a homosexual, or any other reason;
iii)there was a real chance of the applicant suffering harm amounting to persecution in Pakistan if he were to return;
iv)that the applicant had a well-founded fear of persecution for a Convention reason in Pakistan.
(CB 202.8 to 203.1)
I gave directions in relation to this matter on 16 October 2006. I made orders for the filing of additional material, including an amended application pursuant to order 4 made by me on that day. No amended application was filed. The applicant was at that time self-represented. He is now represented by Mr Kumar on a direct access brief. Mr Kumar has only recently come into the matter and the grounds which he wished to agitate upon instructions varied somewhat from the grounds and particulars in the application. The grounds Mr Kumar wished to agitate were elaborated on in written submissions filed on 5 March 2007 and augmented in further submissions filed on 7 March 2007.
At the commencement of the trial of this matter Ms Sirtes, for the Minster, expressed some concern about the resulting lack of clarity in the grounds being pursued by the applicant. I invited Mr Kumar in the circumstances to identify clearly what grounds and particulars the applicant now relies upon. I directed that the particulars to ground (1) be amended to reflect what is being asserted, which is that the Tribunal failed to disclose to the applicant information being inconsistencies between what the applicant told the Tribunal as reconstituted and what the applicant told the Tribunal as previously constituted. Ground (2) was not amended. That is an assertion that the Tribunal erroneously adopted the role of an expert psychologist in finding that the applicant is not a homosexual without having appropriate expertise to make the finding. Ground (3) in the application was not pressed. I further directed that the application be taken to have been amended in relation to ground (4) to raise the assertion that the Tribunal overlooked a claim of religious persecution. Ground (5) was a substituted claim of procedural fairness in relation to photographs and also in relation to the psychologist’s report appearing on pages 173 and 174 of the court book.
The applicant did not take up the opportunity afforded to him by orders I made on 16 October 2006 to file and serve additional evidence. The only evidence I have before me for the purposes of today’s hearing is the court book filed on 16 November 2006. In particular, I have no transcript of either of the hearings conducted by the Tribunal.
Both parties, through their counsel, took the opportunity to make oral submissions in relation to the application as it is now understood. As I indicated during the course of argument ground (1) must fail in the face of the decision of the Federal Court in SZJBE v Minister for Immigration [2007] FCA 190 at [15] to [17]. Section 424A does not require the Tribunal to disclose to an applicant information presented by the applicant to the Tribunal as previously constituted. I reject that ground.
Ground (2) relates to the psychologist’s report. The applicant contends that the Tribunal put itself in the position of an expert psychologist in formulating its findings. In my view, that misdescribes what the Tribunal did and the task that it had to perform. The Minister deals with this ground in his written submissions in paragraphs 14 to 19. I agree with those submissions and adopt them with necessary amendments for the purposes of this judgment:
This ground essentially criticises the Tribunal’s finding of fact that the applicant is not a homosexual. The ground is articulated in the guise of the Tribunal not having sufficient expertise to make such a finding. However it is, in essence, a factual challenge.
The Tribunal was not satisfied on the basis of the applicant’s evidence that he was a homosexual. That was a conclusion based upon a weighing of evidence. It did not require expert psychological qualifications. Nor did the Tribunal require such qualifications in order to consider the psychologist's report put before it. The manner in which the Tribunal dealt with both the applicant’s own evidence and the psychologist's report was by a consideration of weight.
The according of weight to evidence is a task which the Tribunal is perfectly entitled to undertake and similarly, the failure to accord weight to such evidence is not a matter which gives rise to jurisdictional error. As Gummow & Hayne JJ stated in Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [197]:
In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.
In Chand v Minister for Immigration (unreported, Full Federal Court, 7 November 1997) per von Doussa, Moore and Sackville JJ, citing Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at pages 281 to 282, the Court said (at page 11):
The RRT is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.
Moreover, courts have held that the Tribunal is not obliged to obtain expert evidence in order to draw conclusions on vastly more technical matters like document examination: ARAS v Minister For Immigration (1998) 50 ALD 797 and accordingly, a simple factual matter which is rejected on the basis of the applicant’s own evidence does not require any expert qualifications to make that factual determination.
The basis for the rejection of the psychologist’s report was clearly set out by the Tribunal and was open to the Tribunal on the material and facts before it. There is similarly no error in that regard. The Tribunal was not purporting to make an expert assessment on the applicant’s mental state. The Tribunal disbelieved the applicant’s claim that he is homosexual. That was a straightforward assessment of credibility which did not require any expert opinion. Further, the applicant’s claim of homosexuality was a claim of sexual orientation which did not necessarily call for any medical or other expert assessment.
The report of Dr Dean dealt with the applicant’s sexual orientation as well as with his mental health. What the doctor said appears to me to have been inconsistent with what the applicant’s own agent told the Tribunal in a submission dated 19 July 2006. In particular, at page 201 of the court book the agent asserted, presumably on instructions, that at that time the applicant suffered no more from depression. That appears to have been an assertion that he enjoyed good mental health. The discrepancies between what appears to have been told to the psychologist by the applicant and what he had told the Tribunal was a concern to the Tribunal and properly reflected the weight that the Tribunal was prepared to give the psychologist’s report. I see no error in that regard.
Ground (4) as it is taken to have been amended amounts to an assertion that the Tribunal was required to consider the risk of religious persecution faced by the applicant apart from his claim of homosexuality. Mr Kumar put to me that the issue of religious persecution and the issue of homosexuality had a combined effect which the Tribunal failed to grapple with. The real question here is whether the applicant’s concern about being harmed at the hands of religious fanatics which was put to the Tribunal, and which the Tribunal noted at court book 194 to 196, related to anything other than his claim of homosexuality. I do not think it did. The applicant did not articulate any fear of harm separate from his claim of homosexuality. The ostensible reason he feared harm at the hands of religious fanatics was because he claimed to be gay. There was no reason apparent on the material before the Tribunal why the applicant might be harmed by religious fanatics apart from the issue of whether he was gay.
I therefore reject ground (4).
Ground (5) as it is now taken to have been amended raises an asserted failure by the Tribunal to accord procedural fairness in relation to “evidence such as Mardi Gras photos” in making its decision.
I understand that in addition to the Mardi Gras photos the contention relates to the psychologist’s report. As to the photos, the Tribunal notes them as further evidence received, on page 199 of the court book, and deals with them on page 202 of the court book. The presiding member said:
As to the documents and photos showing a relationship between the applicant and the New Mardi Gras, I accept that these are authentic but, in light of the serious discrepancies in the applicant’s other claims in evidence, I believe that these have been acquired for migration purposes and I will accordingly disregard them.
I take this to be a statement by the Tribunal that the applicant had failed to satisfy it that his conduct in Australia at the Mardi Gras was engaged in for any reason other than to bolster his protection visa claims. Accordingly, the Tribunal was required by s.91R(3) of the Migration Act to disregard that conduct and did so. There is no indication on the record of the Tribunal decision whether that issue was raised with the applicant by the Tribunal. The applicant relies upon the High Court decision in SZBEL v Minister for Immigration [2006] HCA 63. That case is, however, distinguishable from this case on two bases. First, in SZBEL the High Court did not have to deal with the impact of s.422B of the Migration Act because the application to the Tribunal in that case was made on 5 June 2001[1]. In contrast, in this case the review application was made after the commencement of s.422B and hence that section applied to the Tribunal proceedings. The Minister relies upon the section. On the present state of authorities I must conclude that s.422B has the effect of excluding the fair hearing rule under the general law[2].
[1] see the decision at first instance by Raphael FM, SZBEL v Minister for Immigration [2005] FMCA 146 at [1]
[2] SZCIJ v Minister for Immigration [2006] FCAFC 62 at [6]-[8]
Secondly, even if s.422B does not have that effect, on the state of the evidence before me the applicant has not discharged his onus of establishing on the balance of probabilities that the Tribunal did not raise with him the question of his need to satisfy it that his conduct at the Mardi Gras was engaged in for some reason other than to enhance his protection visa claims. Even if I were wrong in that finding, in the absence of any jurisdictional error in the decision of the Tribunal concerning the applicant’s claim to be at risk of harm in Pakistan by reason of his homosexuality it is hard to see what point would be served by remitting this matter to the Tribunal for further consideration. As to the psychologist’s report, likewise the available material does not establish a failure on the part of the Tribunal to raise its concerns about the report with the applicant. I therefore reject ground (5).
I find that the applicant has failed to establish jurisdictional error in the decision of the Tribunal. I will therefore order that the application be dismissed.
As to costs, the Minister seeks a costs order fixed in the sum of $4,300. The applicant contends that such a costs order would be somewhat high having regard to the complexity of the matter and the amount of work which has been done. I disagree. The Minister has had to grapple with two sets of legal submissions and an application which was to some extent inconsistent with those submissions. The scope of the application was only clarified orally today. The Minister has prepared a reasonably substantial court book and written submissions and was properly represented by counsel today. The Federal Magistrates Court Rules 2001 (Cth) and scale of costs in relation to migration matters would ordinarily call for an award of costs in the sum of $5,000 following a final hearing. The Minister properly seeks less than that.
I accept that costs of not less than $4,300 have been properly and reasonably incurred on behalf of the Minister in dealing with the application, when assessed on a party and party basis. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in that amount.
I will further direct that the title of the Minister be amended to the Minister for Immigration and Citizenship.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 March 2007
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