SZKRV v Minister for Immigration
[2007] FMCA 1853
•29 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKRV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1853 |
| MIGRATION – RRT decision – Indian fearing persecution for homosexuality – disbelieved by Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 424A |
WAIJv Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
| Applicant: | SZKRV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1674 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 29 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 29 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Mr J Mitchell |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1674 of 2007
| SZKRV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant came to Australia in 2006, and applied for a protection visa on the ground that she feared persecution if she returned to India. A statement attached to her application said that she had become a feminist as a result of seeing her sisters physically abused by their husbands. She joined the local Congress Party, where she met a local woman with whom she developed a lesbian relationship.
She said: “It was very hard for us to live together. My parents were pushing me to get married to a man”. She claimed that she was harassed by political opponents on the basis of her sexuality. She said: “I was beaten by my family time to time and my family abandoned me”. She could not live with her friend, because “we did not have any financial support”, and “wherever we went everyone looked at us differently”. She claimed that her friend's family helped her friend to get a Korean visa, and she went to live in Korea. The applicant herself was assisted to come to Australia, by pretending that she was married.
A delegate refused the application on 15 September 2006, and her decision was affirmed by the Refugee Review Tribunal in a decision handed down on 8 May 2007. Both the delegate and the Tribunal were not satisfied as to the applicant's credibility in relation to her claims of a homosexual relationship.
The Tribunal accepted that lesbians were a particular social group in India, that they were subject to discrimination, and that sexual relations between women were illegal. However, the Tribunal considered that the applicant had contradicted herself in what she told the Department and then the Tribunal, in relation to where she had lived until her departure, and in relation to her claims that her parents had thrown her out of their home. The Tribunal thought that this was contradicted by her passport issued in July 2005, which indicated that her father was then deceased. The Tribunal also thought that she had contradicted herself in her explanations for not living with her friend in India.
The Tribunal noted that the applicant produced at the hearing copies of two letters from Korea written in Sanskrit, which she said were from her friend. She also produced two photographs of herself and another woman. The applicant did not provide a translation of the letters, and there is no evidence that their contents were explained to the Tribunal. The Tribunal referred to these document in its statement of reasons, but said that it placed no weight on them, as a result of its lack of satisfaction that the applicant was a witness of truth.
The Tribunal concluded that it did not accept that she was a lesbian, nor that she "is or was in a lesbian relationship" with the person named. It said:
It follows I do not accept she and/or [that person] were dismissed from the [location] Congress Party or that she was taunted or harmed by her family or by society or that the police refused to assist her.
The Tribunal was ready to accept that the applicant’s parents had pushed her to marry, but did not accept that this would amount to serious harm, as is required by s.91R(2) of the Migration Act 1958 (Cth). The Tribunal was not satisfied that the applicant had suffered persecution or harm in India for her political opinions, or for membership of a particular social group, or for any other Convention reason. It was not satisfied there was a real chance she would suffer Convention-related harm on her return to India.
The applicant now asks the Court to set aside the Tribunal's decision, and to order it to reconsider her refugee claims. I can only make those orders if I am satisfied that the decision was affected by jurisdictional error. I cannot decide for myself whether the applicant's refugee claims are true, nor whether she should be granted a protection visa or any other permission to stay in Australia.
I have considered all the material before me, and have not been able to be satisfied that the Tribunal made any jurisdictional error in its procedures or reasoning.
The applicant's grounds set out in her original application, in an amended application, and in a written submission lack particulars of an argument, so as to give any of the grounds any substance.
Her amended application makes general claims that there were relevant parts of the applicant’s refugee claims which were not considered, but I am unable to identify any such defect. I am not persuaded that the Tribunal failed to consider the claims before it, nor that it misapplied country information, ignored relevant material, applied a wrong test or misapplied an onus of proof.
In relation to arguments presented in a written submission filed by the applicant, no evidence has been presented before me to give any substance to a claim of actual bias on the part of the Tribunal. I can understand that the applicant does not consider that the Tribunal arrived at the correct decision, but this concern alone does not establish bias.
I can see no error in the Tribunal's application of s.91R(2).
Its use of country information did not infringe s.424A, due to the presence of s.424A(3)(a). Particular parts of the evidence which were specific to the applicant, and which were relied upon by the Tribunal, were put to the applicant in a letter served under s.424A(1).
There is no substance in a claim that the applicant's case “is identical to Muin”.
I have considered for myself whether the Tribunal's treatment of the corroborative letters and photographs presented at the hearing reveals any jurisdictional error. However, in the present case I am not persuaded that the Tribunal failed to consider what weight to give to that material (cf. WAIJv Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568), and I consider that it was open to the Tribunal to decide to give it no weight as a result of its adverse opinion of the applicant's general credibility (cf. WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [70]).
The applicant today had no particular arguments to present to me, but affirmed her belief that she would be harassed if she returned to India. However, that belief is not sufficient to allow me to order a further hearing into her claims.
For the above reasons, I am not satisfied that the Tribunal's decision was affected by jurisdictional error. It is therefore a privative clause decision and I must dismiss the application.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 6 November 2007
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