SZKIS v Minister for Immigration

Case •

[2007] FMCA 1223

•

18 July 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKIS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1223
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – applicant a citizen of the Ghana claiming a well-founded fear of persecution on the basis of his membership of a social group – homosexuality – credibility issues – no obligation on the Tribunal to produce evidence rebutting an applicant’s claim – no general obligation on the Tribunal to exercise its power under Migration Act 1958 (Cth) s.427 – no jurisdictional error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 427, 474
SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205
Azzi v Minister for Immigration & Multicultural Affairs (2002) 195 ALR 166
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2001) 207 ALR 12
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407
SZBVM v Minister for Immigration & Citizenship [2007] FCA 332
Applicant: SZKIS
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 860 of 2007
Judgment of: Scarlett FM
Hearing date: 18 July 2007
Date of last submission: 18 July 2007
Delivered at: Sydney
Delivered on: 18 July 2007

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Ms Clegg
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,700.00.

  3. I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 860 of 2007

SZKIS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of the Refugee Review Tribunal that was handed down on 13th February 2007.  In that decision the Tribunal affirmed a decision of a Delegate of the Minister not to grant the Applicant a Protection (Class XA) Visa.  The Applicant seeks jurisdictional review of the Tribunal decision and to that end he has filed an application and an affidavit in support.  Those documents were filed at this Court on 13th March 2007.

  2. In the application the Applicant seeks orders in the nature of mandamus requiring the Refugee Review Tribunal to consider his application for review of the Delegate's decision according to law and an order in the nature or prohibition preventing the Respondent Minister from acting upon the Tribunal's decision.  It follows that the Applicant also seeks an order in the nature of certiorari setting aside the Tribunal's decision.

  3. I have explained to the Applicant that in order to make those orders the Court must be satisfied that the decision of the Tribunal is affected by jurisdictional error.  It is not a question of the Court reconsidering an application on its facts or making its own judgment based on those facts.  The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed.  (See SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3]).

Background

  1. The background to this matter is that the Applicant is a citizen of Ghana. He arrived in Australia on 18th August 2006 and on 25th September in that year he applied for a Protection (Class XA) visa based on his claim to fear persecution on account of his homosexuality.  A Delegate of the Minister refused the application for a visa on 11th October 2006.  A week later on 18th October the Applicant applied to the Refugee Review Tribunal for a review of that decision.

  2. The Tribunal invited the Applicant to attend a hearing which took place on 29th November 2006.  The Applicant gave evidence about his claim telling the Tribunal that he had been with the same partner for the past 13 years having met when they were at school together.  The Applicant told the Tribunal that homosexuality is a taboo in Ghana and as a result they were obliged to keep their relationship secret.

  3. Eventually they were found out and the Applicant said that he had been disowned by his entire family and feared being harmed by family members and community members and said that there was a lack of protection from the government and it would not be safe for him to relocate within Ghana. He and his partner travelled to Australia and they have each applied for a protection visa.

  4. The Applicant's partner, whose name I will not publish as I am told that he too is the Applicant for a protection visa, gave oral evidence at the hearing of the Tribunal on 29th November. The Tribunal wrote to the Applicant on 22nd December 2006 in a letter headed ‘Invitation to Comment on Information’. That letter told the Applicant that the Tribunal had information that would, subject to any comments that he made, be the reason, or part of the reason, for deciding that he was not entitled to a protection visa.

  5. That letter then set out a number of items of information relating to the Applicant's claims and relating to the evidence of the Applicant's witness.  The letter also referred to some material from the Ghanaian Commissioner from the Commission on Human Rights and Administrative Justice. The letter told the Applicant that the information as relevant because the Tribunal could infer from that information that he had not been truthful about a number of important matters.  Those matters, four in number, were set out as follows:

    (a)  You have not been truthful about your employment history.

    (b) The incident in which you claim to have been exposed as a homosexual did not occur.

    (c) You have not been truthful when you claim to have been in a homosexual relationship with a partner.

    (d) You are not homosexual.

  6. A copy of the Tribunal's letter can be found at pages 66 and 67 of the Court Book.  The letter invited the Applicant's comments and with the assistance of his migration agent the Applicant provided a one page submission in reply to the letter.  That document can be found at page 71 of the Court Book.  The Tribunal's decision record can be found at pages 75 through to 90 of the Court Book.  In that decision record the Tribunal set out a summary of the relevant law as the Tribunal understands it; it set out a summary of the Applicant's submissions and the evidence at the Tribunal hearing.

  7. It refers to the evidence both of the Applicant and also the Applicant's partner and refers to the s.424A letter and the Applicant's replies. The Tribunal also referred to an advice to the Refugee Review Tribunal from the Commission on Human Rights and Administrative Justice in Ghana which was provided in 2003. The Tribunal also referred to other Independent Country Information being a report from the United States State Department in 2006 entitled Ghana Country Reports on Human Rights Practices 2005. The Tribunal referred to other sources from the press which appeared to have been taken from the internet.

The Tribunal’s findings and reasons

  1. The Tribunal's findings and reasons are set out at pages 87 to 90 of the Court Book.  The Tribunal was satisfied on the basis of his Ghanaian passport that the Applicant is a national of Ghana.  The Tribunal noted the Applicant's claim to have well founded fear of persecution in Ghana relating to his sexual orientation and stated that the key issue was whether the Tribunal was satisfied that the Applicant is a homosexual.

  2. The Tribunal referred to the Applicant's evidence and of the reasons which he had provided as to why he did not know places in Ghana where homosexuals can socialise together and he had not tried to make contact with any homosexuals since he arrived in Australia. The Tribunal commented that those reasons when taking in isolation would not be implausible.  It went on to say:

    However, for a number of reasons which are set out below I do not consider him to be a generally credible witness and am not satisfied that he is in fact a homosexual.

  3. The Tribunal then sets out detailed reasons why the Tribunal Member came to that view.  They can be found on pages 87 through to 89 of the Court Book.  The Tribunal went on to say:

    Having regard to the above, I am not satisfied that the applicant has been generally truthful about his circumstances in Ghana.  I do not consider he has been truthful when he claims to be a homosexual, and do not accept that he is homosexual.  I am also not satisfied that he was perceived to be a homosexual by relatives or community members. Therefore I find that he does not have a well-founded fear of persecution in Ghana because of his membership, or imputed membership, of this particular social group.[1]

    [1] See Court Book at page 89

  4. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) Visa. 

The application for judicial review

  1. The Applicant in his application sets out four grounds for judicial review.  They are as follows:

    1. The Tribunal failed to take relevant consideration into account to exercising its power to determine the applicant is a refugee.

    2. The Tribunal failed to consider and properly exercise its discretionary power provided under s.427 of the Migration Act 1958.

    3. It did not put to the applicant for comment the finding or conclusion that there were no reports of any action against him despite the Tribunal not obliged to conduct investigations.

    4. Despite not obliged to conduct investigations there is nothing to suggest that the applicant's claim of fear of persecution would not establish either the genuineness of the asserted fear that it was well founded or that it was for the reason claimed.

  2. The Applicant also submitted an affidavit to accompany his application in which he again sets out his claim to be a homosexual and that he and his partner were exposed engaging in homosexual acts and referred to the date of that incident and sets out his claims that his family, including his parents and siblings, have disowned him and his family claims that he has disgraced them and that he fears being persecuted and the community does not tolerate such behaviour and that there was a risk that he would be harmed if he were to return to Ghana.

  3. The affidavit essentially agitates the factual bases for the Applicant's claims and does not of itself set out any allegation of jurisdictional error.  I will deal with the Applicant's claims of jurisdictional error. The Applicant did address the Court this morning asking for the Court to make an order for the Tribunal to review its decision and expressing his belief that he had given information accurately and truthfully.

  4. He told the Court that his partner who had given evidence at his hearing had also applied for a protection visa and that the Federal Magistrates Court had made an order sending his claim back to the Tribunal.  Whilst I accept that this may well be the case, and I see no reason to doubt it.  As I explained to the Applicant the Court could not take that into account in assessing his case. 

  5. The counsel for the Respondent, Ms Clegg, has provided a written outline of submissions in which she meets each of the Applicant's four grounds of review. She claims that the grounds are unparticularised and it is difficult to understand the precise nature of the Applicant's complaints concerning the Tribunal's decision.  As to the first ground, that the Tribunal failed to take into account relevant consideration, she submits that that consideration that was not taken into account has not been stated and points out the difficulty for the Applicant is that his claims were simply not believed by the Tribunal.

  6. As to the second ground that the Tribunal failed to exercise its discretion under s.427 of the Migration Act she points out that that section sets out the powers of the Tribunal including the ability to take evidence and to summon a person to give evidence or produce documents. On the basis that this was a complaint about the Tribunal failure to take further evidence from the Applicant's partner about identified inconsistencies in the evidence set out in the s.424A letter Ms Clegg noted the Tribunal decided not to invite the Applicant to give further evidence and pointed out that there is no duty upon the Tribunal to enquire, referring to Azzi v Minister for Immigration & Multicultural Affairs (2002) 195 ALR 166 and Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2001) 207 ALR 12 per Gleeson, Gummow, Hayne JJ at [1], [42] and [43].

  7. Her submission is that the approach taken by the Tribunal was open to it; it is for the Applicant to make out his case and it is not part of the Tribunal's task to investigate matters for the Applicant. In addition a decision by the Tribunal not to take further evidence from the witness is a discretionary decision. 

  8. As to ground 3 it is submitted that whilst the Applicant complains the Tribunal was required to put to him an observation that there were no reports of any action against the Applicant there did not appear to be any finding or observation of that kind in the Tribunal's reasons. In any event that information was clearly information not specifically about the Applicant but a class of person, if that information was the Independent Country Information from the Commissioner for Human Rights and Administrative Justice. That of course, if it is the case, would come under the exception in sub-s.424A(3)(a) of the Migration Act. 

  9. Ground 4, the Minister submits, is an attempt to revisit the merits of the case by challenging the Tribunal's decision.  In short it is submitted that the Applicant has not identified any jurisdictional error and that there is none.  In consideration of this case I am mindful of the fact that the Court, as I explained, does not reconsider the factual evidence and make its decision on the facts. The Court can only set aside the Tribunal's decision if it is satisfied that the decision is affected by jurisdictional error. 

  10. In dealing with the grounds set out there is no evidence before me as to what relevant consideration the Tribunal failed to take into account when making its decision. My reading of the Tribunal decision indicates that the Tribunal did consider the Applicant's claims and the nature of those claims.  It is certainly a fact that the Applicant's claim is based upon his membership of a particular social group, based on his homosexuality.  No other claims have been set out and the claim of membership of a particular social group has indeed been considered by the Tribunal.

  11. Unfortunately for the Applicant the Tribunal did not believe his evidence on the important aspects of his claim relating to his homosexuality and relationship in which he was involved. Factual decisions are matters for the Tribunal.  So long as there is evidence upon which a factual finding can be made the Court cannot interfere when exercising the power of jurisdictional review.

  12. A decision on the credibility of the witness is a factual finding; in fact it has been described as a finding of fact par excellence in the well known decision of Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407 at [67] in the judgment of McHugh J. In my view there is evidence upon which the Tribunal could have formed the conclusions about the Applicant's credibility that it did, notwithstanding the fact that another Tribunal, or the Court, may not have formed that same view. As to the power under s.427 of the Migration Act which is in the Applicant's second ground, s.427 in sub-s.(1) does set out that:

    For the purpose of the review of a decision the Tribunal may:

    a)  take evidence on oath or affirmation; or

    b)  adjourn the review from time to time; or

    c) subject to s.438 and s.440 give information to the applicant and to the secretary; or

    d) require the secretary to arrange for the making of any investigation or any medical examination that the Tribunal thinks necessary with respect to the review and to give the Tribunal a report of that investigation or examination.

  13. The section however is discretionary.  Indeed that matter was recently considered on appeal from this Court in SZBVM v Minister for Immigration & Citizenship [2007] FCA 332 at [16]. In that decision Tamberlin J referred to:

    An asserted duty of the Tribunal to make enquiries under s.427.

    His Honour went on to say:

    There is no general obligation on the Tribunal to make further inquiries and in my view the circumstances of this case were not such as to generate an obligation on the Tribunal to make further investigations in the absence of any indication that such enquiries would be futile.

  14. It is well established, in my view, that s.427 gives the Tribunal powers but does not oblige the Tribunal to use those powers. Provided that discretion is exercised appropriately in the circumstances as discussed by Tamberlin J in SZVBM there could be no jurisdictional error.  As to the third ground the Applicant complained that the Tribunal did not put to him for comment the finding or conclusion that there were not reports of any actions against him despite the Tribunal not being obliged to conduct investigations.

  15. There was not such a finding made and in any event there is no obligation on the Tribunal to put a negative finding to an applicant. It is for an applicant to establish his or her claims to a visa and to satisfy the Minister, or in this case the Tribunal, that the Applicant meets the requirements for a visa under s.65 of the Migration Act.  If the Tribunal is satisfied then the applicant must obtain a visa, if the Tribunal however is not satisfied and, in other words, if the evidence falls short of satisfaction, then a visa cannot be granted. As to the Applicant's fourth ground the Applicant says that:

    Despite not being obliged to conduct investigations, there is nothing to suggest that the applicants claim to fear persecution did not establish either the genuineness of the asserted fear, that it was well founded, or that it is for the reason claimed.

  16. It is not necessary for the Tribunal to produce evidence rebutting an Applicant's claim.  It is for the Applicant, as I said earlier, to satisfy the Tribunal. It is not part of the Tribunal's function to disprove an Applicant's factual claim. In my view each of the four grounds of review must fail. I am mindful of the fact that the Applicant is not legally represented and I have read through the decision and the supporting material independently of either the Applicant's or the First Respondent's submissions in order to ascertain whether there is any arguable case for jurisdictional error.

  17. I have had my attention drawn to a passage at page 88 of the Court Book which I will quote, but modify by deleting the names of the Applicant and his witness, where the Tribunal said:

    Thirdly, the Tribunal accepts that the manner in which a sexual relationship is conducted, and the way in which the partners relate to each other, will inevitably vary depending on the culture in which they live.  However, apart from their brief references to sexual intercourse, the description by the Applicant and the Applicant's witness of their relationship, and their manner towards each other during the hearing, was far more consistent with a longstanding friendship than the intimate relationship based on love which they claim to have.[2]

    [2] See Court Book at page 88

  18. It is difficult perhaps to find that Tribunal statement persuasive. It would, from a factual point of view, or from observation of life, be just as easy to make such a statement about people engaged in a heterosexual relationship.  It is difficult, with respect, to see that the Tribunal's comments establish anything one way or another. The Applicant, of course, pointed out that the Tribunal was not taking into account cultural differences because in this country people are more likely to touch each other in public than they are in Ghana.

  1. That may well be the case; I see no reason to doubt that claim.  However, that is no more than the case of the Tribunal looking at certain evidence and coming to a conclusion that perhaps another Tribunal Member or the judge hearing the case would not come to that same conclusion. But the Court does not have the power to conduct merits review.  The Court does not have the power to second guess the Tribunal on matters of fact or judgment. The matter has been made quite clear in the decision of SZHCJ at [3], to which I previously referred.

  2. In my view even the most sympathetic of readings of the Tribunal's decision does not allow the Court to find that there is an arguable case of jurisdictional error. It is easy to sympathise with the Applicant, especially as he has told the Court today that his friend's case has, in another proceeding before the Federal Magistrates Court, been referred back to the Tribunal. I do not know any of the circumstances of that case but it is easy to sympathise with the Applicant in these circumstances.

  3. Regrettably, the Court's sympathy does not establish jurisdictional error. As there is no jurisdictional error I am obliged to find that the decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act and as such it is not subject to orders in the nature of certiorari or mandamus or prohibition.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  27 July 2007


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