SZKLN v Minister for Immigration
[2007] FMCA 1407
•8 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKLN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1407 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming decision not to grant protection visa – applicant is a citizen of Egypt claiming fear of persecution as a member of a particular social group – where Tribunal did not accept that applicant was homosexual – credibility issue - no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 474 |
| Applicant: | SZKLN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1101 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 August 2007 |
| Date of last submission: | 8 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,200.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1101 of 2007
| SZKLN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 28th February 2007 and handed that decision down on 1st March 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant has now commenced proceedings for judicial review. He filed an application and an affidavit in support on 2nd April 2007. In that application he seeks orders from the Court removing, which I presume means setting aside, the RRT decision and remitting his application to the Tribunal for determination according to law. The Respondent Minister opposes that application.
Background
The background to this matter is that the Applicant is a citizen of Egypt. He arrived in Australia on 19th May 2006. On 15th September 2006 he applied to what was the Department of Immigration & Multicultural Affairs for a Protection (Class XA) visa. The Applicant seeks protection because he claims to fear persecution if he were to return to Egypt on account of his homosexuality.
On 9th November 2006 a delegate of the Minister refused the application for a visa. The Applicant then applied to the Refugee Review Tribunal on 14th December 2006 for a review of the delegate's decision. He noted in the application that he had the assistance of a migration agent and the migration agent's address was used as his address for correspondence. The Applicant did not provide any additional documentary evidence at the time of his application.
The Tribunal invited the Applicant to attend a hearing to take place on 16th January 2007. The Applicant was unable to attend because of illness and produced a medical certificate. The Tribunal then re-scheduled the hearing after some correspondence with the migration agent on 19th January 2007. The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Arabic language. He produced a copy of his Egyptian passport.
The Tribunal, inexplicably, notes that the Applicant attended a hearing on 18th January 2006 but that is clearly an error. The Tribunal asked the Applicant a number of questions about his claims and his history. No other person gave evidence to the Tribunal on the Applicant's behalf.
That day, after the hearing, the Tribunal wrote to the Applicant care of his migration agent. The letter was headed, ‘Invitation to Comment on Information’ and told the Applicant that the Tribunal had information that would, subject to any comments he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The letter then set out a number of pieces of information and invited the Applicant to comment upon it. The Tribunal then went on to say in its letter:
Please note that the Tribunal flagged a number of other concerns about your oral evidence today. These will be evident from the audio recording of the hearing. In any response to this letter, you may wish to comment on the following points which are of particular concern, or any other relevant matters.[1]
The letter then set out two paragraphs relating to an establishment called the Oxford Hotel. The letter also included the working draft summary of the Applicant's evidence for the Applicant's information.
[1] See Court Book at page 76
The Tribunal handed down its decision on 1st March 2007. The Applicant's migration agent replied to the s.424A letter on
28th February 2007 and raised a number of points including comments about the Oxford Hotel. The migration agent's statement said:
Unfortunately, all responses given at the hearing regarding the Oxford Hotel were answered by the Applicant with the understanding that the questions relate to Oxford Street in general.
For the majority of times during the hearing when the Applicant said the word, 'Oxford' the interpreter interpreted 'Oxford Hotel'. Overall the interpreter did a very satisfactory job but unfortunately this error had significant effect on the understanding of the Applicant's claims in total. When asked to describe specific hotels, the Applicant became confused as he was thinking of Oxford Street in general.[2]
[2] See Court Book at page 85
The Tribunal handed down its decision on 1st March 2007. A copy of the Tribunal decision can be found at pages 90 through to 103 of the Court Book. The Tribunal referred to the Applicant's claims in his protection visa application and also set out in some detail its account of the Applicant's evidence at the Tribunal hearing.
The Tribunal also referred to its letter to the Applicant of 19th January 2007 written in order to comply with s.424A of the Migration Act. The Tribunal also referred to the Response to the letter from the Applicant's migration agent received on 28th February 2007. The Tribunal made this comment:
The Tribunal received a response to this letter later on 28 February 2007, the day prior to the scheduled handing down of this decision. The Tribunal has revised the text of this decision to reflect the material contained in that response.[3]
[3] See Court Book at page 98
The Tribunal then set out in bullet point form a summary of the migration agent's submissions. That summary included the agent's point about the error in interpretation regarding the Oxford Hotel and Oxford Street.
The Tribunal’s Findings and Reasons
The Tribunals findings and reasons are set out on pages 98 through to 103 of the Court Book. The Tribunal accepted that the Applicant was a national of Egypt, and I note that the Applicant had provided a copy of his passport to the Tribunal.
However, the Tribunal did not find the Applicant to be a credible witness on several keys aspects of his claims. The Tribunal noted that it had taken into account the Applicant's responses at the hearing as well as the Applicant's migration advisor's post hearing submission which described him as a nervous person generally. The Tribunal then set out why it had formed this adverse view of the Applicant's credibility.
The Tribunal commented that the Applicant's evidence as to his experience in Australia was marked by inconsistencies and incompleteness. The Tribunal set out its concerns about the unsatisfactory nature of the Applicant's evidence and summarised its findings in this way:
In sum, the Tribunal finds the applicant's evidence as to his homosexual experiences in Australia to be unsubstantiated and wholly unreliable. It does not accept that he goes to homosexual venues or that the homosexual friendships described at hearing are as claimed. The applicant's claim to prefer Australia's liberal lifestyle is entirely credible, in general terms, but the Tribunal does not accept his claims to pursue this as a member of a particular social group, male homosexuals.[4]
[4] See Court Book at page 101
The Tribunal also referred to the Applicant's evidence about his experiences in Egypt and found that evidence not be credible. The Tribunal remarked that the Applicant's oral evidence appeared rehearsed and did not appear to be based on personal experience.
The Tribunal also formed an adverse view of the fact that the Applicant did not lodge his application for a protection visa until 4 months after his arrival in Australia. The Tribunal said:
In the Tribunal's opinion, such a delay casts doubt on whether a person has a genuine fear of persecution although it does not automatically rule out this possibility.
In this particular case, the Tribunal finds both the delay and the circumstances of the application highly suspect.[5]
[5] See Court Book at page 101
The Tribunal did not accept that the Applicant was homosexual and rejected his claim to have suffered past harm for reason of his sexuality in Egypt. The Tribunal found that it had no persuasive material that the Applicant faced a real chance of persecution for any other reason, whether Convention related or otherwise, including perceived homosexuality.
The Tribunal referred to the Applicant's statement at the hearing that he feared persecution for reason of his religion. The Tribunal said the Applicant identified religion rather than membership of a particular social group as the relevant Convention ground. The Tribunal found that neither the Applicant's evidence at the hearing or any other material suggested that there is a real chance of persecution on religious or any other grounds in Egypt.
The Tribunal affirmed the delegate's decision not to grant the Applicant a protection visa.
Application for Judicial Review
In his application, the Applicant sets out three grounds:
i)When asked about venues that the Applicant had been to he replied 'Oxford Street'. The Tribunal was asking questions specifically relating to Oxford Hotel but the Applicant misunderstood and he gave answers in reference to Oxford Street in general.
ii)The Applicant on a number of occasions stated the words 'to Oxford' or 'about Oxford' but the words were translated as 'Oxford Hotel'.
iii)In the application the Applicant stated that he had met some non Egyptians and did not indicate that he had developed lasting relationships with them. The Tribunal made its own assumption about subsequent relationships.
The Applicant attended Court today and addressed the Court about the misunderstanding about Oxford Street and the possibility that the interpreter had misinterpreted the evidence. This claim, of course, had been put to the Tribunal by the Applicant's migration agent's post hearing submission. The Tribunal referred to that and particularly this claim at page 98 of the Court Book.
Even if either ground (1) or ground (2) had been made out I am not satisfied that jurisdictional error would appear. The Applicant has not produced evidence other than his migration advisor's submission to the Tribunal about any unsatisfactory aspects of interpretation. The Applicant, in any event, had the opportunity to correct the misunderstandings in the migration agent's submission in reply to the s.424A letter.
Counsel for the Respondent Minister, Mr Kennett, submitted that in circumstances where the Applicant's advisor was able to draw attention to the alleged mistakes and thus asked the Tribunal to consider the Applicant's evidence on the basis that he was actually talking about Oxford Street. It could not be concluded that mistakes in interpretation had led to the Applicant being deprived of a proper hearing under s.425 of the Migration Act. In my view, with respect, that submission is correct.
As to the third ground, which relates to the Applicant's claim that he met some non Egyptians and asserted that the Tribunal made its own assumption about subsequent relationships, it is difficult to identify whatever is being referred to. The Applicant provided no explanation and whilst the Applicant claims that the Tribunal made its own assumption about relationships this was not part of the Tribunal's reasoning.
In my view, none of the Applicant's three grounds for relief have been made out. The Applicant was not legally represented at these proceedings. I have read through the Tribunal decision and supporting material in order to ascertain whether any arguable case of jurisdictional arises that the Applicant has not referred to. I am satisfied that there is no jurisdictional error. It follows that the Tribunal decision is a privative clause decisions as defined by sub-s.474(2) of the Migration Act.
There is no basis for setting aside the decision or sending the application back to the Refugee Review Tribunal. The application will be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The Applicant has been unsuccessful in his claim and I believe that an order for costs in favour of the Minister is appropriate. I am also satisfied that the amount claimed for costs, namely, $5,200.00 is an appropriate figure bearing in mind the history of this matter. The Applicant is not working and tells the Court he does not have the funds to pay that amount. I will allow six months to pay.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 16 August 2007
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