SZKBX v Minister for Immigration
[2007] FMCA 702
•10 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKBX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 702 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – merits review unavailable – bad faith on the part of Tribunal not proved – bias on the part of Tribunal not proved – claims to persecution did not amount to “serious harm” – visa – protection visa. |
| Migration Act 1958, ss.36, 65, 91R, 91X, 424, 424A, 425, 430, 439, 440, 476 |
| SBBS v The Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Craig v The State of South Australia (1994) 184 CLR 163 Re Refugee Tribunal; Ex parte H [2001] HCA 28 |
| Applicant: | SZKBX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 231 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 10 May 2007 |
| Date of Last Submission: | 10 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Mr. M. Izzo |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 231 of 2007
| SZKBX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application dated 25 January 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on
7 December 2006 and which affirmed an earlier decision of a delegate of the Minister for Immigration & Multicultural Affairs (“Minister”) dated 15 September 2006 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as:
… a single man in his late 20s from Kolkata in India. He was of Bengali ethnicity and the Hindu faith. … The applicant … was born and raised in Kolkata where he lived with his parents. He finished school in 1994 and then undertook higher secondary education for a further two years finishing in 1996. He then went to university and commenced an arts degree. He left some time during 1999 before taking his final exams. (Court Book (“CB”) page 69).
The applicant claims to fear persecution in India because of his homosexuality.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-7 of the Tribunal’s decision (CB 69-72). Relevantly, they are in summary:
a)the applicant developed a homosexual relationship with a fellow student at school (Surajit) which continued until university, although it seemed to the general public that the two were just good friends;
b)the applicant became the college secretary of the Congress Party whilst at university and was a student organiser. On 29 June 2003 the first gay rights march was held in Kolkata. At some point, the applicant was observed kissing Surajit in a public toilet. The observer photographed them using his mobile phone, and knowledge of the applicant’s relationship became public. This caused the applicant great distress and at one point he contemplated suicide; and
c)the applicant and Surajit were threatened by Hindu extremists and they tried to get protection from the government but were disappointed. In the early part of 2005 the applicant was assaulted by Hindus. The applicant’s family contacted a travel agent and arranged a visa for the applicant to come to Australia. However, to obtain this visa, the applicant needed to pretend to be married so that he could say the trip was for a honeymoon. The applicant paid a woman and a series of “wedding photos” were taken, although there was no genuine wedding or formal registration of the marriage. The applicant obtained a visa for Australia and arrived here where he believes he can live “with his rights”.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)there were no claims that the applicant had suffered any serious harm, noting that the applicant made no claims about obtaining any medical treatment following the assault in 2005, mentioning it only in passing, which indicated that it was not a serious incident;
b)the Tribunal rejected the applicant’s claim that he was looking for a place of refuge in South-East Asia and found those countries to be unsafe, noting that his visas for Singapore, Malaysia and Thailand were of greater duration than the actual time he stayed there in 2005, and noting that he could have stayed away longer if he had wished to distance himself from India;
c)the Tribunal noted that there were no claims, nor did the evidence suggest, that the police had in any way harassed the applicant or Surajit, despite knowing first-hand of their homosexuality. The Tribunal observed that the police simply failed to offer “protection”, which it found unsurprising as the harm about which the applicant and his friend were complaining was “taunts, teasing and ostracism from assorted people”;
d)although the Tribunal accepted that social ostracism and teasing is unpleasant, it observed that consideration had to be given to whether the harm that the applicant has suffered since his participation in a gay rights rally could be considered so serious as to amount to persecution. The Tribunal concluded that it was not, noting the following:
i)there had been no harassment of the applicant by the police;
ii)none of his civil or political rights had been impeded;
iii)he was free to travel within and to and from his country, as he has done;
iv)he had been able to maintain the relationship with Surajit;
v)neither he nor Surajit were ostracised by their families; and
vi)the applicant's employment within his family firm continued unabated.
The Tribunal summarised its reasons in the following way:
In short, the Tribunal is not satisfied that any serious harm, let alone harm amounting to persecution, has befallen the applicant for reason of any public knowledge of his sexual preference. The applicant has been known as a homosexual by a number of people since 1997 although this did not cause him any problems. He has suffered some discrimination and harassment since voluntarily participating in a public gay rights rally in mid-2003. He had not participated in any openly gay activities prior to this march and has not done so since. He has not even done so in Australia, where there are no constraints on any such participation. He has not suffered harm amounting to persecution in the past and based on the evidence of the past, the chance that serious harm amounting to persecution will befall him in the reasonably foreseeable future is remote. (CB 74).
Proceedings in this Court
The application brought in this Court, as set out in the application filed on 25 January, the applicant's written submissions filed on 7 May 2007 and his submissions at the hearing, set out a considerable number of grounds for review.
However, before dealing with those grounds it is appropriate to note the basis upon which the Tribunal reached its decision. It found that the version of events advanced by the applicant did not, even if accepted by the Tribunal, amount to persecution, because those events did not amount to serious harm as that term is understood by reason of s.91R of the Act.
Section 65 of the Act provides that a visa is to be granted if the visa applicant meets certain criteria, but is not to be granted if the Minister is not satisfied that the applicant meets those criteria. Section 36 of the Act provides that criteria for the grant of a protection visa include that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Convention. Section 91R(1)(b) of the Act says that for the purposes of the application of the Act and its regulations to a particular person, the Convention does not apply in relation to claimed persecution unless the persecution involves “serious harm” to the person in question. Section 91R(2) sets out examples of what amounts to “serious harm”. The Tribunal made specific reference to the requirements of s.91R at page three of its decision. It is because the applicant did not meet the test of “serious harm” under the legislation that the Tribunal could not be satisfied that he met the criteria for a protection visa.
Returning to the various grounds raised by the applicant, they do not have, as a whole, an obvious relationship with the basis of the Tribunal's decision. In fact, the grounds raised in the application and in the applicant's written submissions are not new to this Court and have been pleaded or raised in other proceedings such as these. Nevertheless, it is necessary that they be dealt with on their merits in these proceedings.
Merits review and breaches of ss.424, 430, 439, and 440 of the Act
Turning first to the application and the first ground therein, this is pleaded as follows:
The Tribunal failed to internalise the circumstantial ground of the review application and in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents, and such has breached s.424, s.430, s.439, s.440 of the Act.
What this ground means or seeks to raise is not immediately obvious, but appears to be an invitation to undertake a review of the merits of the applicant's application, at least in part. In judicial review proceedings such as these it is not open to the Court to review the findings of fact by the Tribunal below, or its decision on the merits, absent jurisdictional error. These proceedings are concerned with the process of the Tribunal hearing and the way the Tribunal has articulated its reasons. It is not concerned with the outcome before the Tribunal.
The findings at which the Tribunal arrived were open to it on the material before it and no jurisdictional error is demonstrated in connection with those findings.
As to the various sections of the Act to which the applicant has made reference:
·s.424 gives the Tribunal power to seek additional information, but no particulars have been provided of any breach of that section by the Tribunal such as, for instance, that having got in information, it failed to have regard to it when making its decision. Nor has any evidence been led to indicate a breach of the section.
·Section 430 sets out the requirements for the Tribunal's decision record. Again, no particulars of the asserted breach of this section have been provided and no breach of the section is apparent from a consideration of the Tribunal's decision.
·Section 439 prohibits the disclosure of confidential information and again no particulars or evidence have been provided by the applicant in support of this assertion.
·Section 440 provides that the Tribunal may restrict publication or disclosure of certain matters and there is nothing before me to suggest that there has been any breach of that section.
Consequently, in relation to each of the sections set out in the first ground of the application, no jurisdictional error has been demonstrated.
Breaches of ss.476, 424A and 425
The second ground set out in the application is pleaded as follows:
The Tribunal in its decision of 7 December 2006 failed in its written statement [such] that [there was] a breach of the rules of natural justice, therefore it rises [sic] the ground under s.476 of the Migration Act.
It is not apparent which written statement the applicant is referring to in this ground, but on the face of it this ground raises potential breaches of s.424A and s.425 of the Act. As to a potential breach of s.424A, I find that there was no obligation on the Tribunal to take steps pursuant to s.424A(1) to give information to the applicant. A consideration of the Tribunal's decision indicates that there was no occasion for the provision of a s.424A(1) letter.
As to s.425, which requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to issues arising in relation to the decision under review, clearly the Tribunal did this. It is also clear from the Tribunal's decision that the matters which were issues arising in relation to the decision under review were the matters on which the applicant did give evidence and present arguments and thus no breach of that section is disclosed.
Consequently, no jurisdictional error is demonstrated in relation to the second ground of review set out in the application.
The Tribunal acted in bad faith
The third ground of review set out in the application is made up of six paragraphs, but the essence is contained in the final sentence, where the applicant asserts that the Tribunal acted in bad faith. As the Full Court of the Federal Court said in SBBS v The Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 [43] to [46]:
·An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker.
·The allegation is not to be lightly made and must be clearly alleged and proven.
·The presence or absence of honesty will often be crucial.
·The circumstances in which the Court will find an administrative decision maker has not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon are the written reasons for the decision under review.
·Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism.
·Errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
In this matter no evidence has been led as to the conduct of the Tribunal. A consideration of the Tribunal's decision indicates that it did not approach the applicant's application with a closed mind and its analysis of the facts discloses quite the contrary. At the end of the day, the Tribunal reached a conclusion which was quite open to it, namely that the discrimination and ostracism suffered by the applicant did not meet the test prescribed by the legislation. In the circumstances, this serious allegation is not made out.
In the applicant's written submissions, he first alleges that the Tribunal demonstrated actual bias. For the reasons given in relation to the claim of bad faith, such an allegation must fail.
Secondly, the applicant raises in relation to the claim of actual bias that the Tribunal did not treat this matter as a s.424A issue. However, s.424A imposes no obligations on the Tribunal in the circumstances of this application. It is clear from the Tribunal's decision that the information relied upon in reaching its decision to affirm the decision under review was information provided to it by the applicant for the purposes of his application. As such, the information relied upon by the Tribunal falls within the exception contained with s.424A(3)(b), which obviates the necessity for the Tribunal to provide a s.424A(1) letter.
Failure to apply the test in s.91R(2)(a) in the context of relocation
The second ground raised in the applicant's written submissions is expressed in the following terms:
The Tribunal failed to consider properly the “test” whether the applicant's [sic] would suffer “serious harm” as per s.91R(2)(a) of the Migration Act … if he asked to relocate in India.
This ground raises two issues namely, compliance with the test in s.91R and the issue of relocation. As already noted in these reasons, the Tribunal both cited and observed the requirements of s.91R, which was, in fact, the basis of its decision. As to the question of relocation, this was never an issue before the Tribunal, but in any event, it is apparent that no issue of relocation genuinely arises because the Tribunal concluded that the applicant did not have a well‑founded fear of persecution for a Convention reason.
The Tribunal did not use certain country information
The next ground set out in the written submissions is that the Tribunal did not use certain country information when making its decision. In his written submissions the applicant quotes country information derived from the United States State Department Country Report on Human Rights Practices in India 2005, which sets out examples of discrimination against gay men and lesbians in India. However, as observed by counsel for the first respondent in his submissions, the conduct alleged by the applicant as amounting to persecution of him is not the conduct which appears in the United States State Department country information. The picture painted by the applicant is quite a different one to the one painted by the country information.
As to whether the Tribunal should have undertaken enquiries to discover the information contained in the United States State Department Country Report, there can be no real doubt that the Tribunal has no obligation to undertake inquiries. It has the right under s.424 to seek information, but it has no obligation to do so.
The Tribunal applied the wrong test
The next ground in the written submissions is that the Tribunal “applied [the] wrong test” for two reasons; the first one being that:
By requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant, the Tribunal was, in effect, placing too high an onus on the proof of the applicant and failing to give the applicant the benefit of the doubt.
The Tribunal did not require independent evidence before it would accept the applicant's claims. It essentially accepted what the applicant said but concluded that it did not amount to persecution. As to failing to give the applicant the benefit of the doubt, the circumstances of this matter make it clear that the need to give the applicant the benefit of the doubt never arose.
In the second limb of the assertion that the Tribunal “applied [the] wrong test”, the applicant asserts that:
The Tribunal left out individual elements of the applicant's claims and tested whether they individually amounted to persecution, rather than look at the claim as whole to determine whether the claim so considered amounted to persecution.
The applicant has not identified what individual elements of his claim were left out but it is not apparent that elements of the applicant's claims were left out or not considered by the Tribunal. Moreover, rather than dissect the claim issue by issue – although it did consider each issue individually – the Tribunal concluded, by a consideration of the entirety of the material put before it and the applicant's claims, that the chance of serious harm amounting to persecution befalling him in the reasonable future was remote, with the consequence that the Tribunal was not satisfied that he had a well-founded fear of persecution for a convention reason. Consequently, this ground set out in the written submissions demonstrates no jurisdictional error.
The Tribunal made contradictory findings
The next ground in the written submissions is phrased as follows:
The Tribunal contradicting its findings by virtue of its acceptance that “he has suffered some discrimination and harassment since voluntarily participating in a public gay rights rally in mid-2003”.
I take this to be an assertion that a finding that the applicant had suffered discrimination and harassment was inconsistent with a finding that he had not suffered persecution. However, for the reasons expressed in the Tribunal's decision, and as discussed in these reasons, this ground cannot be made out. Because of the test of “serious harm” found in the legislation, the discrimination and harassment suffered by the applicant did not, in the circumstances, amount to persecution.
The applicant’s involvement in the Congress Party
The next ground was the subject of questioning of the applicant by the Court during the course of the hearing and relates to an assertion regarding the applicant's involvement in the Congress Party. In his written submission the applicant says that the Tribunal “debated or argued my involvement in Congress Party”, then makes reference to apprehended bias and a passage discussing jurisdictional error contained in the High Court's decision in Craig v The State of South Australia (1994) 184 CLR 163. The applicant was not able to identify to the Court what relevance this part of his written submissions had to the application for judicial review of the Tribunal's decision. He first said that the Congress issue was not the main issue and later said that it was not part of his protection visa application claim. So much seems apparent from the Tribunal's decision and the claim generally.
Nevertheless, in the event that it is actually asserted that there was some apprehended bias, it should be observed that no evidence has been given as to the course of the Tribunal hearing, including by way of transcript, other than what appears in the Tribunal's decision record. Based on what is contained in the Tribunal's decision record, I am unable to conclude that an apprehension of bias on the part of the Tribunal is open. Or, to apply a test suggested by Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Tribunal; Ex parte H [2001] HCA 28 at [28]:
Perhaps it would be better, in the case of an administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias.
Although that is not formally the test for apprehended bias, their Honours nevertheless, with respect, give helpful guidance on the approach which might be taken in a case such as this. On either that formulation of the test, or the more classically formulated test for apprehended bias, there is no basis that such could be concluded.
The Tribunal acted illogically
What appears to be the last ground of review set out in the written submissions is that the Tribunal acted illogically when it concluded the applicant had not participated in any “open gay rally in India and in Australia”. At the outset it should be observed that the Tribunal did not dispute or find against the applicant on his allegation of having participated in a gay rights rally in Kolkata.
In relation to participation in a gay rally in Australia, the submission does not accurately record what the Tribunal said. What the Tribunal said in the first full paragraph on page 9 of its decision is that the applicant had not participated in any openly gay activities in Australia, where there were no constraints on any such participation. It appears that this conclusion is based on the applicant's evidence to the Tribunal found on page 7 of its decision, where the applicant is recorded as having stated that he had not explored the “gay scene” of Australia and, based on the record of the evidence, I do not conclude that the Tribunal's conclusion was illogical.
But in any event, it is not apparent that that comment has any relevance to the ultimate finding that the Tribunal was not satisfied that the applicant had a well‑founded fear of persecution for a Convention reason.
In the second-last sub-paragraph of that final asserted ground of review contained in the written submissions, there is an assertion by the applicant that he had been tortured "by the extremists." In his submissions to the Court at the hearing, the applicant said that if he returned to India it would be impossible for him to be alive. These are not the claims which the applicant made to the Tribunal, and it is not open in these proceedings for the applicant to make fresh allegations of fact which were not before the Tribunal. No jurisdictional error has been demonstrated in relation to those asserted grounds.
Conclusion
Jurisdictional error on the part of the Tribunal not having been demonstrated, the application will be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 12 June 2007
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