SZHZZ v Minister for Immigration
[2007] FMCA 1052
•15 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHZZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1052 |
| MIGRATION – Review of decision of RRT – where applicant claimed fear of family – where relocation was available. |
| SZDBP v Minister for Immigration [2006] FCAFC 110 |
| Applicant: | SZHZZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG4 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 15 June 2007 |
| Date of last submission: | 15 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2007 |
REPRESENTATION
| For the Applicant: | In Person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay First Respondent’s costs assessed in the sum of $3,500.00.
The name of the First Respondent be amended to Minister for Immigration and Citizenship.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 4 of 2006
| SZHZZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the Philippines. He arrived in Australia on 21 April 2005. On 18 May 2005 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 16 August 2005 a delegate of the Minister refused to grant a protection visa and on 8 September 2005 the applicant applied for review of that decision. The Tribunal held a hearing on 14 November 2005. On the same day it determined to affirm the decision under review and handed that decision down on 6 December 2005.
The grounds upon which the applicant sought the protection of Australia arose out of his sexual orientation and his relationship with his family. He also made a claim arising out of fear of an organisation called the MILF.
The applicant is a homosexual who comes from a prominent and wealthy Muslim family. Since the death of his father one of his elder brothers appears to have taken a role as head of that family which included providing the applicant with an allowance whilst he studied. One of the applicant’s complaints is the allowance he received was not sufficient to allow him to live properly but by the time the matter came before the Tribunal the applicant accepted that he was no longer entitled to financial support from the family for reasons entirely unrelated to the Convention.
There are a number of brothers in the applicant’s family. It would appear that the Tribunal accepted that his brothers had discriminated against him because of his sexual orientation. He does get on with his sisters-in-law or at least some of them. At one stage he left the area of the Philippines in which his family lived and moved to Manila where he lived for a year and was able to find employment. The applicant agreed that the attitude of the Philippines as a state towards homosexuality was:
“Not a country in which there was strong discrimination in society against homosexuals. People’s problems came mainly from their families, as in his case. Homosexuality was not illegal, and there were many places for homosexuals to openly socialise.” [CB 70]
In 1998 whilst he was a student the applicant was approached by members of the MILF which is a Muslim organisation and asked to join. He declined and pressure was placed upon his employer to dismiss him and his college to refuse him accommodation. He did in fact resign from his job and did in fact lose his college accommodation but this did not prevent him from graduating or from obtaining further employment. He heard no more from the MILF for six years until 2005 when he was approached by three Muslim men in a village. Their faces were covered by handkerchiefs and he did not know them personally. They abused him for being a homosexual and cut two ponytails into which his hair had been combed. The Tribunal accepted this evidence but stated:
“However, he did not know their identities or the reason behind the incident. The fact that he had no further contact with them during his final three months in town suggests that it was an isolated event which will not be repeated even if he returns to town. I am also unable to establish whether there was a Convention reason for the incident.”
The applicant still maintains a residual fear of his brothers, particularly one of them and today expressed concern to me that if he returned to the Philippines his brother might do something bad towards him. The Tribunal came to a particular view concerning these family problems which it expressed at [CB 74]:
“However, whatever his problems in his home town, I am satisfied they were confined to that town. The applicant did not claim, and the independent evidence set out above does not indicate, that homosexual men in the Philippines are subject to “serious harm” and systemic and discriminatory conduct. He also agreed that, generally speaking, the Philippines is not a country in which there was strong discrimination in society against homosexuals, that peoples problems came mainly from their families, as in his case, that homosexuality was not illegal and that there were many places for homosexuals to openly socialise. He did not claim to have had any problems in Manila when he lived there for a year, and was able to find employment there. For these reasons I do not accept there is a real chance he would face Convention-related persecution if he lived in some part of the Philippines away from his home town.
As to whether it would be reasonable for him to relocate, I am satisfied that it would. He stated that he spoke both Bisayan and Tagalog, both languages which I am satisfied are very widely spoken in the Philippines. Further, he is a well-educated adult with a variety of employment-related skills. He has already lived in Manila for a year without any significant problems and has now come to Australia, steps which show an ability and willingness to adapt to new circumstances and environments. I find that he could reasonably be expected to relocate within the Philippines.”
In the application which was filed in this court on 3 January 2006 the applicant stated as grounds for his application the three matters which were a rehearsal of his claims before the Tribunal but did not set out any grounds upon which jurisdictional error was alleged. Although the applicant later obtained legal advice and a solicitor entered an appearance he told me today that that solicitor had given him certain advice concerning his likelihood of success in this matter and appeared no further. The applicant speaks excellent English and told me that he did not know of any error of law and explained that he was afraid of going back to the Philippines because of what his brothers might do to him.
I agree that there is no error of law in the Tribunal’s decision. It is essentially that it failed to be satisfied that the applicant’s concerns were Convention related in that the persecution he claimed had been directed at him by his family rather than by the state and that the state itself was tolerant of persons of his particular social group. Even if it could be said that the Tribunal may have fallen into jurisdictional error by not considering the possibility of a lack of state protection such error would be negated by the finding in relation to relocation which was fully rehearsed and took into account all the relevant considerations. I heard no argument from the applicant that the Tribunal’s finding in this regard was wrong. The fact the Tribunal included in its consideration that the applicant had relocated to Australia is a legitimate matter to take into account; SZDBP v Minister for Immigration [2006] FCAFC 110.
Having considered the Tribunal’s decision as a whole and the helpful written submissions of Ms Palaniappan on behalf of the Minister I am satisfied that the Tribunal did not fall into jurisdictional error in the manner in which it came to its decision in this particular case. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $3,500.00. I also order that the name of the First Respondent be amended to Minister for Immigration and Citizenship.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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