SZKBX v Minister for Immigration and Citizenship

[2007] FCA 1401

FEDERAL COURT OF AUSTRALIA

SZKBX v Minister for Immigration & Citizenship [2007] FCA 1401

MIGRATION – judicial review – appeal from decision of Federal Magistrate – decision dismissing application for judicial review of Refugee Review Tribunal decision – alleged failure to consider legal and factual errors by Tribunal – alleged injustice and want of procedural fairness – no viable grounds – appeal dismissed

Migration Act 1958 (Cth)

SZKBX v MINISTER FOR IMMIGRATION AND CITIZENSHIP  AND REFUGEE REVIEW TRIBUNAL
NSD 936 OF 2007

FRENCH J
20 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 936 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKBX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FRENCH J
DATE OF ORDER:	20 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant is to pay the first respondent’s costs of the appeal.

3.The first respondent is to file and serve an affidavit within seven days setting out the amount of the costs it claims and the basis of that calculation.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 936 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKBX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FRENCH J
DATE OF ORDER:	13 SEPTEMBER 2007
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appellant pay the first respondent’s costs fixed at $2,000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 936 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKBX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FRENCH J
DATE:	20 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant SZKBX is a citizen of India.  He arrived in Australia on 28 May 2006.  He arrived in this country lawfully.  On 22 June 2006 he applied for a protection visa.  That application was refused on 15 September 2006 by a delegate of the Minister for Immigration and Citizenship (MIC).  The appellant then applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision.  On 7 December 2006, the Tribunal affirmed the decision not to grant the appellant a protection visa.   The appellant then applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  On 10 May 2007, the Federal Magistrates Court dismissed his application.  On 28 May 2007 the appellant filed a notice of appeal against the decision of the Federal Magistrates Court.

2. The appellant applied for a protection visa on the basis that he feared persecution, if  he returned to India, by reason of his homosexuality.  He said that he had developed a homosexual relationship with a fellow student at school.  This relationship continued throughout his time at university.  For a while it was not public.  At university he was an active member of the Congress Party.  He said that in 2003 he participated in a Gay Rights march.  He claimed that some years before that time he and his friend had been observed kissing and had been photographed by someone.  That was 1997, which was his first year at university.

3. In answer to questions put by the Tribunal it seems that he had no problems between 1997 until 2003, when he participated in the rally.  He claimed that it was only after the Gay Rights rally, or march, that he started to experience difficulties by reason of his homosexuality.  It became widely known that he was homosexual.  His family lost face with various Hindu organisations to which they belonged.  People threw stones at the house.  He said that he and his friend applied to the police for protection.  They thought the police might be able to have a word with some of the local Hindu clubs, however, they said there was nothing they could do. 

4. He said he began to be ostracised at the university.  He left his volunteer work with the Congress Party at the end of 2004.  He stayed at home for a time working in the family business.  He told the Tribunal that he felt guilty about the fact that his family was suffering from harassment.  He said that early in 2005 he was assaulted by some Hindus and decided to leave India.  He went to Singapore, Malaysia and Thailand.  However he returned from those countries to India.  He only had short-term visitor’s visas to each place.  He said that friends told him that Australia and New Zealand were safe and he, therefore, applied for an Australian visa.  Initially he was rejected.  With the help of a travel agent he then took some fake wedding photos and pretended he was going to Australia on his honeymoon.  The agent obtained a visa for the appellant on 7 March 2006, however he did not travel to Australia until the end of May. 

5. The Tribunal, in its findings, accepted that he was a citizen of India and that homosexuals in India constitute a particular social group.  The Tribunal noted that he and his friend had been observed and photographed kissing each other in first year university in 1997, but experienced no problems arising from that.  There were no claims that he had suffered any serious physical harm as a result of what he said happened after 2003.  He remained at university, working for the Congress Party for 18 months after things had started to go wrong.  This was a voluntary position, he chose to remain.  He also remained at his family home for three years after 2003, although he had a nine day visit to South East Asia in mid-2005.  The Tribunal did not believe that he was looking for refuge in South East Asia.  His visas for Singapore, Malaysia and Thailand were for longer times than the actual times he stayed.  He voluntarily re-entered India and returned to his family home.  The Tribunal had doubts about his story of seeking protection from the police.  He did not tell the Tribunal why his parents did not complain to the police about stone-throwing at their house.  The Tribunal accepted that he felt guilty about the effects of his relationship on his parents and sister.

6. The Tribunal considered whether the harm that he had suffered, since taking part in the Gay Rights rally, amounted to persecution.  The Tribunal found that it did not.  He had not been harassed by the police.  His civil and political rights had not been impeded.  Indeed, he was able to maintain his relationship with his friend and neither he, nor his friend, had been ostracised by their families.  The Tribunal was not satisfied that any serious harm had befallen the appellant.  It concluded that the chance of serious harm amounting to persecution, in the future, was remote.  On that basis, the Tribunal was satisfied that he did not qualify as a refugee under the Refugees’ Convention. 

7. The learned magistrate, in his decision, reviewed the various grounds raised by the appellant.  The grounds were difficult to follow.  They alleged various failures to comply with provisions of the Migration Act 1958 (Cth) (the Act).  They asserted breach of the rules of natural justice and bad faith on behalf of the Tribunal.  They alleged a failure to apply the relevant test in relation to the possibility of the appellant relocating within India.  There was a reference to the Tribunal’s failure to use independent country information, quoted by the appellant.  The Tribunal was said to have applied the wrong test. 

8. The appellant complained that the Tribunal required independent evidence before accepting his claims.  The learned magistrate pointed out that it had not done that.  The Tribunal was also said to have made contradictory findings and to have acted illogically.  All of these grounds were rejected. 

9. In his notice of appeal to this Court, the appellant said that the learned  magistrate failed to consider legal and factual errors made by the Tribunal.  There was a general complaint that the learned magistrate failed to consider that the Tribunal decision was unjust.  The appellant complained that the Tribunal had emphasised irrelevant questions in the oral evidence and ignored his political profile.  He also complained that there was a lack of procedural fairness in his case.

10. Having reviewed both the reasons for decision of the Tribunal and the reasons of the Court below, none of these matters are made out in my opinion.  The appeal will be dismissed with costs.

    Postscript on costs

11. The preceding reasons for judgment were delivered ex tempore.  When judgment was delivered counsel for the first respondent sought an order for costs fixed at $2,000.  I required the presentation of some evidence to support that sum.  An affidavit has since been filed indicating that the total cost incurred by the first respondent in connection with this proceeding exceed $4,000.  On that basis I will fix the costs in the amount of $2,000.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:
Dated:        13 September 2007

The appellant appeared in person
Counsel for the  First Respondent:	Mr R White
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	20 August 2007
Date of Judgment:	20 August 2007