SZGZA v Minister for Immigration
[2007] FMCA 186
•26 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGZA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 186 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether applicant had sufficient opportunity to give evidence and make submissions on a determinative issue – whether there was an extraneous issue that the Tribunal failed to put to the applicant that formed part of its reason for affirming the decision under review. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 425(1);474; pt.8 div.2 |
| SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63 |
| Applicant: | SZGZA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2197 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 13 February 2007 |
| Date of last submission: | 13 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Eastman |
| Counsel for the Respondent: | Mr M.P. Cleary |
| Solicitors for the Respondent: | Ms M. Mafessanti, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2197 of 2005
| SZGZA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 June 2005 and handed down on 19 July 2005.
The applicant was born on 22 March 1982 and claims to be from Mongolia and of Mongolian ethnicity (“the Applicant”).
The Applicant arrived in Australia on 3 January 2005, having legally departed from Ulaanbaatar on a passport issued in her own name and a temporary business subclass 456 visa issued on 29 December 2004.
On 24 January 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In her protection visa application, the Applicant claimed that she feared persecution by religious extremists, community leaders and other Mongolian authorities due to her homosexuality. The Applicant claimed that she was discriminated against and insulted by members of the community because she is a lesbian.
On 7 February 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 7 March 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. Before the Tribunal, the Applicant also claimed that she feared her partner’s step father, who is intolerant of homosexuality. On 30 June 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 16 August 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
The Tribunal confirmed that it had before it the Department’s file, including the protection visa application and the Delegate’s decision record. The Applicant was represented in her review proceeding by a migration agent who was also assisting her partner, Ms L.
On 22 May 2005, in response to the Tribunal’s invitation to attend a hearing, the Applicant’s agent advised the Tribunal that the Applicant would attend the hearing and that Ms L would also attend to give evidence.
The Tribunal noted that Ms L was also an applicant before the Tribunal who had also been invited to attend a Tribunal hearing on 26 May 2005, being the same date as the Applicant. The Applicant’s hearing was to commence at 12pm. Ms L’s proceeding was to commence at 3pm. The Tribunal noted that the Applicant did not attend the Tribunal at 12pm, however, did attend at 3pm with Ms L. The Tribunal then proceeded to hear separately from the Applicant and Ms L, in the absence of the other. The Applicant’s hearing was then adjourned to 2 June 2005.
The Tribunal noted at the first hearing that it put to the Applicant that her protection visa application form had contained very few details of her claims and the harm she suffered or fears in Mongolia. The Tribunal noted that, when it asked the Applicant what she feared would happen, if she were to return to Mongolia, the Applicant responded that she feared her partner’s step father because he is a religious man and has very strict views about homosexuality. The Applicant also informed the Tribunal that her partner’s mother and her own parents do not approve of the relationship.
The Tribunal noted that, when it asked the Applicant about the religious organisation to which her partner’s step father belonged, the Applicant was unable to recall.
The Tribunal then explored with the Applicant the commencement of her relationship with Ms L. It noted the Applicant’s assertions that, on the night of the Applicant’s birthday on 22 March 2002, they had both been drinking and the Applicant informed Ms L that she was in love with her. The Applicant stated that Ms L was surprised and that she had a boyfriend whom she had told the Applicant was violent. The Applicant also stated that Ms L became pregnant to the boyfriend, however, lost the baby. The Tribunal noted that the Applicant stated that Ms L was shocked at the Applicant’s revelation and they did not see each other for more than 10 days. However, after that time the relationship developed and became sexual.
The Tribunal noted that the Applicant stated that her partner’s parents found out about the relationship when they discovered a video made by the Applicant and Ms L recording their sexual activity. The Applicant stated that on that evening she and her partner were cooking dinner when her partner’s mother and step father came over, found the video and threw the Applicant out of their flat.
The Tribunal noted that the Applicant stated that she went home to her family but was thrown out by her parents and ended up at the house of one of the sisters of her partner. The Applicant stated that she stayed there until she obtained the visitors’ visa to Australia and was able to leave Mongolia.
At that point the Tribunal closed this first hearing and told the Applicant that it would now spend the remainder of the afternoon hearing evidence from Ms L in the absence of the Applicant.
The Tribunal recommenced the Applicant’s hearing on 2 June 2005. The Tribunal put to the Applicant that independent country information indicated that homosexuality was not illegal in Mongolia and that the new criminal code, which came into effect on 1 September 2002, contains no specific reference to homosexuality. However, the Tribunal also noted that independent country information indicated that social attitudes to homosexuality in Mongolia remain negative, particularly among the conservative and older generation, whereas the younger urban population is more accepting. The Applicant agreed with that information.
The Tribunal asked the Applicant whom she feared in Mongolia and the Applicant identified her partner’s step father. She stated that Ms L’s step father belonged to a religious organisation that considered that homosexuals have no right to exist. However, the Applicant was unable to provide the name of that organisation.
The Tribunal then noted that it explored with the Applicant why she could not locate away from Ms L’s family and noted the Applicant’s response that, in Mongolia, one could not survive in an unfamiliar area and that her partner’s step father would locate them wherever they were.
The Tribunal then went on to explore with the Applicant her knowledge of gay bars and venues and noted that the Applicant was unable to identify any such venues. The Tribunal noted it put to the Applicant that independent country information on the internet indicated that there were a number of gay bars and clubs in Ulaanbaatar. The Tribunal noted that the Applicant had said there were no particular venues for gay people in Ulaanbaatar.
The Tribunal noted that on 27 May 2005, it sent a letter to the Applicant pursuant to s.424A(1) of the Act in respect of information it considered would form part of the reason for affirming the decision under review. That letter is in the following terms:
“Dear [Applicant]
Your Application for Review
The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.
The information provided by you in oral evidence to the Tribunal in relation to your relationship with Ms [L] is at variance in regard to significant aspects of the nature and duration of the relationship with the written information contained in the protection visa application.
Furthermore your evidence to the Tribunal on 26 May 2005 about the commencement of a sexual relationship with Ms [L] was not in agreement with the evidence provided by Ms [L]. At the hearing before the Tribunal on 26 May 2005 you stated as follows in relation to your relationship with [Ms L]:
You were friends from high school and met when your families went summer camping each year. You stated that the relationship changed on 22 March 2002 which was your birthday.
On that day you said that you celebrated your birthday at a party where you consumed alcohol and after which you returned to your parents’ home with Ms [L]. At this time you said that you made known to her that you had feelings of a sexual attraction to her. You said that she was surprised and told you that she had never thought of such things because she had a boyfriend before. You said that she was shocked at what you had said and you did not see her after that for ten days. After ten days you re-established contact and the relationship developed from there and became an intimate sexual relationship in about April of the same year.
At the hearing Ms [L] told the Tribunal that on the day of your birthday 22 March 2002 you both celebrated your birthday with other friends and after drinking alcohol you both went back to your parents’ place. She said that you [Applicant] declared your feelings of sexual attraction and desire. She told the Tribunal that she was surprised at what you had said to her but liked it and in that time you understood each other. Ms [L] told the Tribunal that the relationship became an intimate sexual relationship on that night. She told the Tribunal that she spent that evening with you [Applicant].
Why this information is relevant to the review:
The inconsistencies between your written and oral evidence and the inconsistencies in your oral evidence and that of Ms[L] on the matter of your claimed lesbian relationship may lead the Tribunal to form the view that your account of events is not truthful and has been fabricated to support your claim for refugee status
You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by Tuesday 21, June 2005.
IF YOU DO NOT GIVE COMMENTS BY TUESDAY, 21 JUNE 2005 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUT CASE WITHOUT FURTHER NOTICE.”
On 14 June 2005, the Applicant responded to the Tribunal’s letter in the following terms:
“Dear sir/madam,
Subject: In response to your letter dated 27 May 2005.
4Thank (sic) you for your letter dated 27 May 2005. Regarding the inconsistencies of oral evidences, I would like to inform you that I have boy friend. Probably some mixed it up with my oral evidence.
I faced serious persecution in Mongolia due to my sexual relationship with my partner Ms [L]. I am a lesbian.
My understanding in this regard the inconsistency probably the problem of interpretation.
I am going to give you what actually happen that night. We stay all night to gather (sic) not only the evening. I think there are some confusion regarding the interpreter’s interpretation. I like to mention at this stage that when I inform that regarding the shock but interpreter interpret surprise.
I would like to request you respectfully to consider my refugee claims. I believe you understand. If you have any query please contact me.”
The Tribunal, in the “Findings and Reasons” section of its decision, relied on the Applicant’s oral evidence insofar as her claims that she is a lesbian and in relation to her claimed relationship with Ms L. The Tribunal accepted that the Applicant is a citizen of Mongolia.
However, the Tribunal did not accept that the Applicant is a lesbian and that she shares a lesbian relationship with Ms L. The Tribunal found that the Applicant “was not a credible witness.” The Tribunal noted that the Applicant’s account of the development of a sexual relationship with Ms L was “at variance” with the oral evidence of Ms L in significant respects. The Tribunal noted that, whist both women agreed that the Applicant’s birthday in 2002 was a significant date, the details of their experiences on that evening and their evidence of when the relationship altered and its essential nature; that is from that of young friends to that of female lesbian lovers, was “at variance”. The Tribunal noted that those discrepancies had been put to the Applicant for comment in the s.424A letter and noted that the Applicant had responded in a way that did not address the Tribunal’s concerns.
The Tribunal also found that the Applicant was not able to give a “credible account” of how a lesbian relationship developed after the couple’s first sexual encounter, saying that they did not have much opportunity to meet each other.
The Tribunal noted that, at the first hearing, the Applicant stated that, when she was thrown out of her partner’s apartment in December 2004, she had ended up at the home of one of her partner’s sisters, where she had stayed until the visa was issued. However, at the second hearing on 2 June 2005, the Applicant stated that when she was thrown out of Ms L’s apartment in December 2004, she first went to her parents place and then went to stay with a woman called K, who was an older woman and a friend of her partner.
The Tribunal found that the Applicant’s claim that she and her partner made a video of their sexual encounter “implausible”. The Tribunal rejected the Applicant’s claim that she was abused or threatened by
Ms L’s mother and step father for reasons of her lesbian relationship as she has claimed.
The Tribunal found that the Applicant is not a lesbian and that she has not suffered threats of harm or actual harm from the mother and step father of Ms L, or from any other person. The Tribunal was not satisfied that the Applicant has a well founded fear of persecution for any Convention reason if she were to return to Mongolia.
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was represented before this Court by Mr Eastman, of counsel. Mr Eastman informed the Court that he had received the brief only the night before the hearing, however, confirmed that Mr Seymour, of counsel, had held the brief at least since January. Mr Eastman sought leave to file in Court a further ground to be relied upon, which he hand wrote whilst in Court. Mr Eastman also sought to rely on written submissions in support of the 2 grounds contained in the Applicant’s amended application filed on 25 May 2006. Mr Eastman did not seek to supplement those written submissions with any oral submission in support of either of those grounds. Because of the lateness of the filing of the written submission and the inability of Mr Eastman to otherwise identify the complaints contained in those grounds, the written submissions of the Applicant were rejected by this Court. Mr Eastman confirmed that, in the circumstances, the Applicant did not rely upon and withdrew the 2 grounds identified in the amended application.
The ground upon which the Applicant did rely, and in respect of which leave was granted to file in Court, is set out as follows and identified as ground 3:
“3) The Applicant has been denied procedural fairness by the Tribunal as she was not put on notice of the determinative issues in the proceedings and given a sufficient opportunity to give evidence or make submissions about these issues by:
(a) The determination of the delegate;
(b) The s424A notification of 27 May 2005; or
(c) The proceedings at the 2nd hearing on 2 June 2005.
PARTICULARS:
The determinative issue is the variance of oral evidence between the Applicant of oral evidence between the Applicant and Ms[L] as set out on page 12 of the Tribunal’s 30 June 2006 decision.”
At the heart of counsel for the Applicant’s contentions, was that the Tribunal’s statement, “The discrepancies have been put to the applicant for comment and her response in no way addresses the Tribunal’s concerns”, is not correct. Counsel for the Applicant stated that the discrepancies relate to the variance in the evidence between Ms L and the Applicant on the development of their relationship. Counsel for the Applicant referred the Court to the recent High Court decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63 (“SZBEL”) in support of the contention.
Counsel for the Applicant contended that the Tribunal’s letter, dated 27 May 2005, sent in purported compliance with s.424A(1) of the Act (“the s.424A Letter”) did not set out the entirety of Ms L’s evidence and that the information referred to by the Tribunal was insufficient to support the Tribunal’s conclusion that, “Whilst the accounts of both women agreed on a significant date, being the applicant’s birthday in 2002, the details of their experiences on that evening and their evidence on important aspect of when the relationship altered in its essential nature; that is from that of young friends to that of female lesbian lovers was at variance.”
The High Court in SZBEL made clear that, where a Tribunal’s statements or questions during a hearing sufficiently indicate to an applicant that everything he or she says in support of an application is an issue, then it is not necessary for the Tribunal to put to an applicant that he or she is lying or that they may not be accepted as a witness of truth or that they may be thought to be embellishing the account that is given of certain events. The High Court stated the following at 15:
“Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”
True it is, that the Delegate did not raise any of these issues with the Applicant. However, it is clear on a fair reading of the Tribunal’s decision that the claims made by the Applicant before the Tribunal were far more expansive than those provided to the Delegate. Furthermore, the Tribunal gave to the Applicant the information that gave rise to the Tribunal’s concern about the inconsistency in the Applicant’s evidence of the development of her relationship with Ms L and Ms L’s evidence, in accordance with its statutory duty pursuant to s.424A(1) of the Act. The Tribunal complied with its obligation to advise the Applicant of the adverse conclusion which it may draw from that inconsistency.
In the circumstances, the Tribunal gave the Applicant a sufficient opportunity to give evidence and make submissions on what turned out to be a determinative issue in relation to the decision under review (cf. SZBEL at 14). There is no extraneous issue that the Tribunal failed to put to the Applicant that formed part of its reason for affirming the decision under review.
There is no other information that would not obviously be open on the known material to the Applicant. Accordingly, the Tribunal complied with its obligation to invite the Applicant to attend a hearing “to give evidence and present arguments relating to the issues arising in relation to the decision under review” in accordance with s.425(1) of the Act.
Counsel for the Applicant also contended that it was not open to the Tribunal to find that the Applicant was not able to give a credible account of how a lesbian relationship developed after the couples first claimed sexual encounter. Counsel also contended that it was not open to the Tribunal to reject the Applicant’s claim of having made a video with Ms L as “implausible” and to reject that the Applicant was abused and threatened by Ms L’s mother and step father, without putting those matters to the Applicant.
In answer to this contention, the First Respondent submitted that the Tribunal was doing no more than weighing the evidence of the Applicant. The First Respondent submitted that, in making those credibility findings, the Tribunal had regard only to information provided to it by the Applicant. The First Respondent submitted that the Tribunal had put the Applicant on notice of the discrepancies that gave it concern arising out of the evidence of the Applicant and the evidence of Ms L in the s.424A Letter. In those circumstances, the First Respondent submitted that it was entirely appropriate for the Tribunal to have regard to those discrepancies and to find that the Applicant’s response to the s.424A letter did not address the Tribunal’s concerns.
The Tribunal’s finding that the Applicant’s claim about having made a video is “implausible” is a finding that follows the Tribunal’s failure to accept that the Applicant is lesbian and that she shares a lesbian relationship with Ms L. Similarly, because the Tribunal rejected the Applicant’s claims to be a lesbian and that she shared a lesbian relationship with Ms L, the Tribunal did not accept that the Applicant was abused or threatened by Ms L’s mother and step father for reason of her lesbian relationship.
A fair reading of the Tribunal’s decision makes clear why the Tribunal did not accept the Applicant’s evidence about her lesbian relationship with Ms L. The Tribunal put that information about the variance in the accounts given by each of the Applicant and Ms L about the commencement of their relationship and the development of it, to the Applicant for her comment in its s.424A Letter. It was open to the Tribunal to find that its concerns were not addressed by the Applicant’s response to the s.424A Letter.
The issues the Tribunal found to be determinative of the matter before it were:
i)the inconsistency in the evidence of the Applicant about her relationship with the account provided by Ms L; (see paragraphs 39 to 45 above in these Reasons) and
ii)the Applicant’s failure to give a credible account of how a lesbian relationship developed after the couples first sexual encounter leading the Tribunal to conclude that the Applicant was not a lesbian and had not shared a lesbian relationship with Ms L.
In relation to (ii) above, the Tribunal’s conclusion was based on its rejection of the Applicant’s explanation of the infrequency of the opportunities to meet. The Tribunal noted that it had put to the Applicant that information before it indicated that there were a number of gay friendly clubs and a gay and lesbian rights group called Tavilan in her area. The Tribunal noted the Applicant’s response that she personally did not know any of this information and she hid her sexuality from society because she would otherwise risk discovery of unwanted attention of the community. It was open to the Tribunal not to be satisfied by that explanation and to conclude the Applicant was not able to give a “credible account” of how the lesbian relationship developed after her first sexual encounter with Ms L.
In those circumstances, it is not necessary for the Tribunal to put specifically to the Applicant that it did not accept those claims.
The Tribunal conducted its review, including the making of its decision, in accordance with the statutory regime. The findings and conclusions it made were open to it on the material and evidence before it and for which it provided reasons.
Accordingly, ground 3, being the only ground relied upon by the Applicant, at the hearing before this Court, is not made out.
Conclusion
The Tribunal complied with its statutory obligations in the conduct of its review and in the making of its decision. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 19 February 2007
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