SZHFP v Minister for Immigration - [2007] FMCA 224

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHFP v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 224

MIGRATION – Review of decision of RRT – where applicant claimed persecution because of his sexual orientation – whether Tribunal erred in assessing the applicant’s evidence and concluding he was not in danger of being persecuted – whether Tribunal erred in not sending s.424A letter in relation to a matter that did not appear to be part of the reason for affirming the decision under review.

Migration Act 1958, s.424A

Applicant:

SZHFP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2760 of 2005

Judgment of:

Raphael FM

Hearing date:

12 February 2007

Date of last submission:

12 February 2007

Delivered at:

Melbourne

Delivered on:

12 February 2007

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the respondent's cost assessed in the sum of $2,800.00.
Name of the first respondent be amended to the Minister for Immigration and Citizenship.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

SYG2760 of 2005

SZHFP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Mongolia. He arrived in Australia on 24 October 2004. On 4 February 2005 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 17 February 2005 a delegate of the Minister refused to grant a protection visa. On 15 March 2005 the applicant applied for a review of that decision to the Refugee Review Tribunal. The Tribunal invited the applicant to a hearing which he attended. At the hearing the applicant requested some further time to provide additional information and a period of 14 days was granted. On 12 August 2005 the Tribunal determined to affirm the decision under review and it handed that decision down on 6 September 2005.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations under the Migration Act 1958 (the “Act”) were that he was a homosexual and that his sexual orientation was not one that was approved of in his home country. He claimed that when he revealed his sexual orientation he found that people were repulsed by this. His friends no longer had anything to do with him neither did his parents. He told the Tribunal that he had been attacked because of his sexual orientation and that this had occurred on more than one occasion when he had been severely beaten.
The Tribunal questioned the applicant about these events and also asked him some questions intended to assist the Tribunal to come to a finding as to whether or not the applicant was credible in his assertion of his sexual orientation. The Tribunal and the applicant discussed the views about homosexuality from some independent country information which the Tribunal had and other information that the applicant provided to it. The applicant told the Tribunal that the major religions in Mongolia were opposed to homosexuality. The Tribunal pointed out to the applicant that homosexuality was not a crime in Mongolia although it was possible that use might be made of s.113 of the Penal Code to punish homosexual acts.
The Tribunal accepted that there was some societal distaste for same sex relationships in Mongolia. One of the things the Tribunal questioned the applicant about was the existence of a support group known as Destiny and at [CB 157] there is a report of a discussion between the Tribunal and the applicant concerning this group and the concerns which the Tribunal had that the applicant appeared to have been unaware of it until his arrival in Australia. The Tribunal also discussed with the applicant details of the persecution he alleged that he had suffered and expressed concern when the applicant appeared to be adding claims which had not been previously made.
In its findings and reasons, which commence at [CB 160] the Tribunal indicated that it had come to the conclusion that the applicant was not credible in respects of key aspects of his claim and because of this lack of credibility the Tribunal concluded that he was not in genuine fear of persecution or that there was a real chance that he would be persecuted if he returned to Mongolia. The Tribunal then set out its concerns about the applicant's claim to be a homosexual, and stated at [CB 161]:
“On the basis of the foregoing observations, the Tribunal is not satisfied that the applicant is a homosexual as he so claims.”
The Tribunal then went on to consider the applicant's claims of physical harm because of his sexual orientation. It found it implausible in the light of the applicant's evidence that his claimed sexual orientation would become widely known in Mongolia as a result of him divulging this information to a close friend at a party whilst inebriated. The Tribunal expressed some doubt as to the truth of the claims of assault before stating:
“The points outlined above, considered collectively, lead the Tribunal to reject the applicant's claim that he is a homosexual and that his homosexuality became known such that he faced ostracism, physical violence and a decline in his business.
Nor does the Tribunal accept that the applicant faces harm on his return to Mongolia such as threats to his life or inability to work by reason of his claimed sexual orientation.”
The applicant filed an application for a review of the Tribunal's decision with this court on 28 September 2005. The only ground set out in that document was "To reconsider my application for refugee in Australia." No amended application was filed notwithstanding the orders of Registrar Kavallaris, made on 1 November 2005. At the hearing today I asked the applicant why he believed the Tribunal had erred in law in the way in which it had come to its decision. He told me that he was unable to express himself very well whilst he was at the Tribunal and that was why he was unsuccessful. He also told me that he had found it difficult to get the additional information that the Tribunal had given him time to obtain. He said that he had tried his best, but he could not get enough information to assist with his case.
The applicant also told me that the Tribunal did not pay enough attention to the country information regarding people who discriminated against persons such as him on the grounds of sexual orientation. He felt that the Tribunal had not properly read or considered the country information that he had provided. It is, of course, the responsibility of an applicant to satisfy a tribunal that he is a person to whom Australia owes protection obligations and provided the Tribunal gives him a fair opportunity to do this there is no jurisdictional error in the Tribunal concluding that it is not so satisfied in the absence of sufficient information.
The Tribunal is also the arbiter of fact and one of the facts which it must most closely consider is whether or not the story put by the applicant is credible. The Tribunal can come to a conclusion as to credibility based upon material that is properly before it and if it does so and indicates why it has come to that conclusion, then its decision on the matter will generally be considered to have been made within its jurisdiction. This Tribunal discusses the evidence given by the applicant and its reasons for finding that that evidence was not credible insofar as it dealt with the applicant's sexual orientation. I am unable to see that it fell into jurisdictional error in so doing. I would make a similar finding in relation to the claims concerning the physical abuse that the applicant says he suffered and which is discussed by the Tribunal at [CB 161].
The only possible area in which the Tribunal may have erred related to part of a discussion between the Tribunal and the applicant concerning his student visa application. This is first referred to at [CB 154] and then again at [157]. It could be considered that this information was the type of information that might fall within the ambit of s.424A(1) of the Act and that as a result the Tribunal was obliged to have written to the applicant explaining to him why it was that that information might be the reason or part of the reason for the Tribunal coming to an adverse conclusion upon his application. But it seems to me that a reading of the Tribunal's findings and reasons would not support an argument that anything within the student visa application, as discussed at [CB157-158], did form the reason or part of the reason for the Tribunal's adverse findings in relation to the applicant's credibility.
These reasons were entirely independent of the matters contained in the student visa application and it does not seem to me that the Tribunal has suggested that there was some discrepancy between the student visa application and this application for a protection visa, save that it found it strange that the applicant did not apply for a protection visa until after his student visa had expired. That concern was expressed to the application at [CB 158] and explained by him. It is not further referred to in the Tribunal's decision.
After counsel for the Minister had concluded her submissions the applicant was asked whether he had anything to say in response. Apart from wishing to provide further information of a factual nature, which would be inadmissible for the purposes of this hearing, he had nothing further to say. The applicant has not satisfied me that the Tribunal fell into jurisdictional error in the manner in which it came to its decision. I dismiss the application and order that the applicant pay the respondent’s costs assessed in the sum of $2,800.00. I will also order that the name of the first respondent be amended to the Minister for Immigration and Citizenship.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: