SZKNJ v Minister for Immigration and Multicultural and Indigenous Affairs
[2007] FMCA 1439
•6 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKNJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1439 |
| MIGRATION – Burden of proof does not apply to administrative enquiries – applicant must establish relevant facts – Tribunal may accept or reject evidence as appropriate – bias – not established – tests for use of country information matter for the Tribunal – weight matter for the Tribunal. |
| Migration Act 1958 (Cth), ss.36(2), 91R(2), 420, 422B, 424, 424A, 425, 430, 439, 440, 474, 476 |
| Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZKNJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1246 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 6 August 2007 |
| Date of last submission: | 6 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms R. Francois |
| Solicitors for the Respondents: | Ms B. Anniwell of Australian Government Solicitor |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1246 of 2007
| SZKNJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 18 April 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 6 March 2007 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 27 June 2007 within the time allowed by the Court on 3 May 2007.
The applicant was born on 6 November 1980 and claims to be from India, and of the Christian faith (“the applicant”).
The applicant arrived in Australia on 3 September 2006 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 25 September 2006. In this application he claimed a fear of persecution on the basis of his homosexuality. The applicant claimed that if he were to return to India he would be forced into an arranged marriage. The applicant claimed that he would be beaten and stoned to death if his homosexuality was revealed, and that the authorities would not protect him because “they condemn the practices of gays…as against their religious beliefs and cultural morals” (Court Book “CB” 27-8).
The applicant sought to rely on what was referred to as “s.377”. The Tribunal took into account what is referred to as “s.377 of the penal code in India” which the Tribunal says criminalises homosexual practices. The Tribunal referred to the penal code at CB 88. The reference to “s.377” therefore is a matter that the Tribunal took into account (CB 88.5).
This application was refused by a delegate of the first respondent on 4 November 2006 (CB 49-63).
On 29 November 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 64). The applicant attended a hearing before the Tribunal on 25 January 2007 to give evidence and present oral arguments (CB 74).
By decision signed on 6 March 2007 the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 89-93) (highlighting added):
The Tribunal finds that the review applicant is a national of India who was issued a passport in his correct name on 18 January 2000.
The Tribunal finds that the review applicant claims to be a member of a particular social group, namely homosexual men in India. The Tribunal finds that the review applicant has expressed a subjective fear that he will be killed by his family, that state protection would be insufficient to protect him from his family and that he would be unable to relocate within India because his family would find him.
The Tribunal finds that the review applicant holds a subjective fear of persecution for the Convention ground of membership of a particular social group, and that the Convention ground is the essential and significant reason for the persecution.
It remains for the Tribunal to determine whether the review applicant holds a well-founded fear of persecution, that is, whether there is a real chance of persecution involving serious harm and discriminatory conduct in the reasonably foreseeable future.
At the Tribunal hearing on 25 January 2007 the review applicant stated that:
He had been involved in a homosexual relationship with his former teacher for eight years and they met regularly at the teacher’s house on weekends or during the week;
After arriving in Australia the review applicant gave his partner permission to tell the review applicant’s family about their homosexual relationship because he had decided not to return to India;
The review applicant’s former teacher received some harassing telephone calls from the review applicant’s family after advising them about the relationship, but has not experienced any other difficulties after revealing this information because he has a small family;
The review applicant’s main fear about returning to India is that his large and influential family will arrange to have him killed because he has brought shame on them. The review applicant stated that if they do not kill him, they will make his life extremely difficult and he will not be able to adjust to the new situation. The review applicant was unable to provide detail of how his family would make his life difficult;
The review applicant stated that he did not know if he would experience any problems within the local community or through local authorities because of his homosexuality. He stated that he is concerned that his return to India would continue to be an insult to the family;
The review applicant was not concerned about his situation as a homosexual man in India and did not experience any difficulties because of his homosexuality until after he reached the usual marriage age of 26 years in 2006. The review applicant stated that this is why he did not consider making a claim for protection when he travelled overseas in 2003;
The review applicant would be able to ask police or local authorities for protection from his family, although he was concerned that they would be unable to provide the continuous protection he would need.
The review applicant claimed in his protection visa application that he would be an outcast from family and the community in India if his homosexuality became known, and that he would be beaten and stoned to death. He stated that he would not be protected by local police because homosexuality offends their religious beliefs and cultural values.
The review applicant was invited at the Tribunal hearing to provide further details of his claims. The review applicant was unable to provide details of any harm or persecution he might experience within the local community, despite the potential for serious persecution described in the country information extracted above. The review applicant stated at the hearing that his main fear is that he will be killed by his family. The review applicant advised the Tribunal at his hearing that he believed the local police would be willing and able to offer him limited protection from his family, despite the potential for serious abuse by police which is described in the country information extracted above.
The Tribunal notes that the review applicant claimed in writing to the Department that he would be beaten and stoned to death if his homosexuality became known in the community. The Tribunal also notes, however, that the review applicant was unable to describe any fears that he might hold for his safety within the community if his sexuality was revealed. The Tribunal finds that the review applicant has not given sufficient consideration to the potential consequences for him in his local community if his homosexuality was to become widely known. The Tribunal notes that the review applicant claimed in support of the protection visa application that police would not be able to protect him from his family or from the community. The Tribunal notes, however, that in his evidence at the hearing the review applicant stated that police could protect him, although not indefinitely. The Tribunal finds that the review applicant has not given sufficient consideration to whether local police could or would protect him if he returned to India. The review applicant advised the Tribunal that he did not make his own enquiries about living elsewhere in India where homosexuality is more widely accepted, although he did discuss the matter with his former teacher. The Tribunal notes that the review applicant did not provide a response to the Tribunal’s letter of 1 February 2007 in relation to the relevance of the country information extracted above.
The Tribunal finds that the review applicant’s inability to provide details of his claims and his lack of understanding of the situation affecting homosexual men in India generally, or his own community in particular, adversely affects the credibility of his claim to have been a practising homosexual in that country for eight years prior to his arrival in Australia in September 2006.
The review applicant advised the Tribunal at his hearing that the relationship with his former teacher was revealed to his family after his arrival in Australia and, apart from some harassing telephone calls from his family, no adverse consequences have been felt by his former teacher following the release of that information. The Tribunal notes that the review applicant appeared not to be familiar with, or even concerned about, any adverse consequences which might affect his former teacher in the wider community. The review applicant stated only that his former teacher is not at risk because he has a small family. The Tribunal finds that this aspect of the review applicant’s evidence adversely affects the credibility of his claim to have been involved in long term homosexual relationship with his former teacher because it would be expected that the review applicant would be very concerned about his partner’s safety in the event that their relationship became public knowledge.
The Tribunal is not satisfied, on the evidence before it, that the review applicant is a practicing homosexual or that he was involved in a long-term homosexual relationship with his former teacher prior to entering Australia in September 2006.
However, even if the Tribunal had been satisfied that the review applicant is a practising homosexual as claimed, it would need to consider whether the review applicant had a well founded fear of persecution because of his homosexuality.
Whether the review applicant has a well-founded fear of persecution for the reasons claimed by the review applicant
The review applicant stated in the protection visa application that he would be an outcast from family and the community in India if his homosexuality became known, and that he would be beaten and stoned to death. He stated that he did not want to be forced to marry a woman because he is a homosexual man.
The review applicant stated at his Tribunal hearing, however, that his real fear is that his family will kill him because he has brought shame on this large and influential family group. He stated that his uncles, who are responsible for decision making which affects family interests, would arrange for him to be killed. The Tribunal accepts that the revelation that a family member is homosexual may be a source of great shame for a family in India, particularly for families in the regional areas who are prominent or otherwise influential in the local community. The Tribunal accepts that additional shame might be brought upon the family following the failure of an arranged marriage in the circumstances described by the review applicant. The Tribunal also accepts that the review applicant may well have forfeited his rights to any share in the family inheritance, and that relationships within the family might be difficult or fractured because of his homosexuality and his refusal to proceed with the arranged marriage. The review applicant has not, however, provided evidence to explain why his family would take the extreme step of arranging for him to be killed because he is a practising homosexual who has refused to proceed with an arranged marriage. As the review applicant appears to be unaware of the potential for serious harm, for persons who are known to be practising homosexuals, in the community generally or at the hands of local police, it is difficult to understand the basis on which he could have formed the view that his own family would take the matter so seriously that they would be prepared to end his life. There was no suggestion that the review applicant has become aware through previous events or conversations within his own family that they might take an extreme view of his situation. There was no suggestion that the review applicant’s own fears were formed because of incidents of violence within other prominent or influential families in the region where a family member’s homosexuality became known.
The review applicant stated that he travelled to Australia in September 2006 to avoid the arranged marriage which was scheduled to take place in October 2006. There was no suggestion by the review applicant at his Tribunal hearing that he will be expected to enter into an arranged marriage in the future, now that he has declared himself to be a practising homosexual and has been condemned by his family. The Tribunal finds that, if the review applicant is a practising homosexual and has declared his homosexuality to his family and the family of his potential bride, there is little likelihood that he will be considered eligible for further marriage proposals. The Tribunal finds that the review applicant’s fear that he will be forced into a heterosexual marriage is not credible in all the circumstances.
The Tribunal finds that the review applicant’s stated fear that he will be killed by his family if he returns to India is not plausible in all of the circumstances. The Tribunal is not satisfied on the evidence before it that there is any substantial basis for the review applicant’s stated fear that he will be killed by his family if he returns to India. The Tribunal finds that there is no real chance of the review applicant being killed by his family if he returns to India. The Tribunal finds that the review applicant does not hold a well founded fear of persecution on the basis that he will be killed or suffer serious harm by or on behalf of his family because he is a practising homosexual who refused to proceed with an arranged marriage.
Whether a practising homosexual in India would have a well-founded fear of persecution
The Tribunal takes into account the country information extracted above and finds that there is a real chance that a practising homosexual in certain areas in India, particularly in the regional areas, would be subjected to serious harm and systematic discriminatory conduct. The Tribunal finds that, if it had been satisfied that the review applicant is a practising homosexual as claimed, then it would also be satisfied that the review applicant holds a well founded fear of persecution on the grounds of his membership of a particular social group, namely homosexual men in India.
State Protection
The Tribunal is also satisfied on the basis of the country information extracted above that, if the Tribunal had accepted that the review applicant is a practising homosexual as claimed, it would also be satisfied that he might not be able to obtain effective state protection in his local area.
Relocation
The Tribunal takes into account the relevant country information extracted above and accepts that there is a real chance that homosexuals in many parts of India could be subjected to serious harm and systematic discriminatory conduct by members of the community or local authorities for a Convention reason. The Tribunal notes, however, that there are a number of cities and larger towns in India where homosexuality can be openly practised. The Tribunal finds that in cities such as Bombay (Mumbai) and Bangalore, which are described in the country information extracted above as centres for gay culture, the likelihood of an openly homosexual person being subjected to serious harm as described in section 91R(2) of the Act would be significantly reduced. On the basis of the country information extracted above, the Tribunal finds that the likelihood of an openly homosexual person in Bombay or Bangalore being subjected to serious harm including a threat to life or liberty, significant physical harassment or ill-treatment, significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist is remote. The Tribunal is not satisfied that there would be a real chance that an openly homosexual person in Bombay or Bangalore would be subjected to serious harm (as described in section 91R(2) of the Act) by members of the community or local authorities on the basis of their membership of a particular social group, namely, practising homosexuals.
The review applicant stated at the Tribunal hearing that, although his main language is Malayalam, he also studied English and Hindi and school and watches Hindi, English and Tamil movies. The review applicant stated that he would be able to find employment elsewhere in India. The review applicant is a single man with no dependants.
The Tribunal finds that, if the review applicant was a practising homosexual man as claimed, and was at risk of persecution in his local region of Kerala, he would be able to relocate to any of a number of cities and towns in India where he would be able to live and work openly as a homosexual man. The Tribunal has already rejected the review applicant’s claim that his family will kill him if he returns to India, and also rejects his claim that he would not be safe anywhere in India because his family would find him and kill him. The Tribunal finds that there is no impediment to the review applicant relocating to another part of India, and finds that relocation would be reasonable in all the circumstances.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in section 36(2) of the Act for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The application
In his application, the applicant set out four grounds as follows:
(1)The Tribunal applied the wrong test:
(a)By requiring the 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 and onus of proof on the applicant and failing to give the applicant the benefit of the doubt.
(b)The Tribunal left out individual elements of the applicant’s claims and tested whether they individually amounted to persecution rather than look at his claim as a whole to determine whether the claim so considered amounted to persecution.
(2)The Tribunal failed to internalize 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 section 424, section 430, section 439, section 440 of the Act.
(3)The Tribunal in its decision of 25 January 2007 [sic 6 March 2007] failed in its written statement that a breach of the rules of natural justice, therefore it rises the ground under section 476 of the Migration Act.
(4)Despite the severity of the ‘private clause’, an opportunity for review can lie under section 39B of the Judiciary Act (Cth) 1903, which rely on the original jurisdictional of the Court. However, review under s.39B is gained the decision of the Refugee Review Tribunal dated 31 May 2006 [sic 6 March 2007] can be reviewed, if the following four factor (sic) are observed.
(a)The decision maker acted in good faith.
(b)The decision is reasonably capable of reference to the power granted to the decision maker – this is unlikely to be an issue given that, to argue to the contrary, it would have to be shown that the decision maker did not have the authority to make the decision concerned, for example, had not had authority delegated to him or her Minister for Immigration and Multicultural Affairs or had not been properly appointed to the Tribunal.
(c)The decision relates to the subject matter of the legislation (i.e. the Migration Act) this again is highly to be an issue, given that a major purpose of the Migration Act is the making of visa decisions.
(d)Constitutional limit are not exceeded – given the clear constitutional basis for visa decision making in the Migration Act. This is highly unlikely arise.
From the above factors the only one of any real significance is the first, the Tribunal did not act in good faith. My claim that the decision maker acted in bad faith.
The applicant filed an amended application on 27 June 2007 setting out the following grounds and particulars:
(1)That the decision of the Refugee review Tribunal was effected by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or ‘integers’ central to the applicant’s claims;
(2)The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
Particulars of Grounds
(a)The Tribunal did not consider the applicant who had been under immense and intimidating pressure from his own family members because of his homosexuality.
(b)In relation to above the Tribunal did not consider the applicant’s claim that his family members will kill him if he returns to India.
(3)the Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.
(4)The tribunal and its decision ‘findings and reasons’ has harshly mentioned that ‘the Tribunal has already ejected the review applicant claim that his family will kill him if he returns to India, and also rejected his claim he would not be safe anywhere in India because his family would find him and kill him. The Tribunal finds that there is no impediment to the review applicant relocating to the another part of India, and finds the relocation would be reasonable in all the circumstances.’ According to the US State Department Country Report on Human Rights in India, gays and lesbians faced discrimination in all areas of society, including family, work and education. I refer to RRT decisions country information page no 10 of 15.
(5)the Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome. The Tribunal used the all information for matter of reasoning and evaluation of my case for protection visa.
(6)The RRT member emphasised on some irrelevant questions at the hearing and ignored my sexuality that put my life in danger. In doing so the Tribunal member have ignored relevant material and made finding which is erroneous or mistaken.
(7)The Tribunal applied the wrong test. The Tribunal left out individual elements of the applicant’s claims and tested weather they individually amounted to persecution rather than look at the claim as a whole determine whether the claim so considered amounted to persecution.
(8)The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in fact, placing to high an onus of proof an the applicant and failing to give the applicant the benefit of the doubt.
Findings of the Court in relation to the grounds in the application
Ground 1(a) alleges that the Tribunal placed a “too high” burden of proof on the applicant. The Court agrees with the following statement by the Tribunal in another matter:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596 [sic 144 ALR 596], Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70). The High Court has emphasised in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR and Guo, referred to above, that the law requires that the Minister (or this Tribunal, on review) must be ‘satisfied’ that a person is a refugee.
After considering the decision of the Tribunal, the Court does finds ground 1(a) is not established. The Tribunal accepted many matters put by the applicant, but rejected others. “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] (8 April 2005). Ground 1(a) is rejected.
Ground 1(b) complains that the Tribunal considered the individual elements of the applicant’s claims instead of considering his claim as a whole. The Tribunal analysed the individual elements of the claim by the applicant first. The Tribunal then stated that at CB 93:
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations…for a protection visa. Therefore the applicant does not satisfy the criteria set out in s.36(2) of the Act for a protection visa.
Ground 1(b) is rejected
Ground 2 alleges breaches of ss.424, 430, 439 and 440 of the Act. Section 424 provides the Tribunal with the discretion to obtain information that it considers relevant. A breach of this section has not been established.
Section 430 requires the Tribunal to prepare a written statement setting out the reasons for its decision, and refer to the evidence or any other material on which the findings of fact were based. The Court finds that the Tribunal complied with s.430.
Section 439 relates to disclosure of confidential information by a person who has performed functions under the Act. The section does not relate to whether the Tribunal conducted the hearing according to law.
Section 440 provides the Tribunal with the discretion to restrict publication or disclosure of certain matters. The section does not relate to whether the Tribunal conducted the hearing according to law.
The Court finds no breaches of the sections as alleged. Ground 2 is rejected.
Ground 3 alleges a breach of the rules of natural justice. The full extent of the applicable natural justice hearing rule are set out in Division 4 of Part 7 of the Act (s.422B).
Section 424 was not breached (see above).
Section 424A was complied with (CB 75).
Section 425 was complied with (CB 71-72).
Section 476 merely confers jurisdiction on the Court.
There was no apparent breach of Division 4 of Part 7of the Act. No breach has been established. Ground three is rejected.
Ground 4(a) alleges bias. No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court accepts also that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
Bias has not been established. This ground is rejected.
Ground 4(b) raises a test that the decision maker must have authority to make the decision concerned. The Tribunal had the authority to make the decision concerned. Ground 4(b) is rejected.
Ground 4(c) raises the test that the decision relates to the subject matter of the Migration Act. Clearly the decision of the Tribunal relates to the subject matter of the Migration Act. Ground 4(c) is rejected.
Ground 4(d) requires that constitutional limits are not exceeded. Constitutional limits were not exceeded by the Tribunal. Ground 4(d) is rejected.
Findings of the Court in relation to the grounds in the amended application
Ground 1 alleges that the Tribunal failed to “take into account certain relevant consideration or ‘integers’ central to the applicant’s claims.” Nothing has been put to establish this ground. It is apparent from the decision of the Tribunal that the Tribunal took into account the claim by the applicant that he was a member of a social group, or a particular social group of homosexuals. The Court accepts the submission for the first respondent that that was the only integer of the claim. It is apparent from reading the Tribunal’s decision that it took into account not only that part of the applicant’s claim, but also took into account all other relevant aspects of the case put to it. Ground 1 is rejected.
Ground 2 alleges a failure to exercise jurisdiction because:
(a)The Tribunal did not consider the pressure on the applicant from his family members. The Tribunal did consider that claim and rejected it (CB 89.6, 92.1) as it was entitled to do: Lee v Minister for Immigration and Multicultural and Indigenous Affairs (ante).
(b)The applicant alleges that the Tribunal did not consider the applicant’s claim that his family members will kill him if he returns to India. That contention is incorrect (see CB 92.1) and is rejected.
Ground 2 is rejected.
Ground 3 alleges a denial of procedural fairness. That claim has been rejected for the reasons given for rejecting ground 3 of the application. An applicant must establish their case to the satisfaction of the Tribunal. There is no duty on the Tribunal to investigate. Ground three is rejected.
Ground 4 complains about the Tribunal rejecting the applicant’s claims that his family will kill him, and that he would not be safe anywhere in India because his family would find him. The applicant complains also about the findings of the Tribunal that he could relocate elsewhere in India. They were findings of fact properly open to the Tribunal and are not subject to review. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
Ground 4 is rejected.
Ground 5 complains about the Tribunal’s use of country information. As stated in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]:
By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
Ground 5 is rejected.
Ground 6 complains about alleged emphasis of irrelevant questions, and ignoring that the applicant’s sexuality put his life in danger. It has not been established that the Tribunal emphasised irrelevant questions. The Tribunal did consider whether the applicant’s sexuality put the applicant’s life in danger (CB 89.6, 90.1, 90.2). The Tribunal concluded that it was not satisfied that the applicant is a practising homosexual (CB 91.1), but then considered whether, if the applicant is a practicing homosexual, he had a well founded fear of persecution because of his homosexuality (CB 91.2). The Tribunal did not find that claimed fear of persecution to be credible (CB 91.10).
The Tribunal dealt with the applicant’s claim that he will be killed if he returns to India at CB 92.1. The Tribunal concluded that if it had been satisfied that the applicant is a practicing homosexual, then it would also be satisfied that the applicant had a well founded of persecution on the grounds of his membership of a particular social group, namely, homosexual men in India (CB 92.4), and that he might not be able to obtain state protection in his local area (CB 92.5). However, the Tribunal found that the applicant
would be able to relocate to any of a number of cities and towns in India where he would be able to live and work openly as a homosexual man. (CB 93.1)
The Tribunal therefore found that there is no impediment to the applicant relocating to another part of India (CB 93.2). Ground 6 is rejected.
Ground 7 is a rewording of ground 1(b) of the application and is rejected for the reasons set out thereunder.
Ground 8 complains about the allegedly high onus of proof put on the applicant, and is a repeat of ground 1(a) in the application. It is rejected for the reasons set out thereunder.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 21 August 2007
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