SZLAE v Minister for Immigration
[2007] FMCA 2102
•30 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLAE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2102 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings – allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker – bad faith cannot be constituted by recklessness and requires Tribunal to deliberately make decision without carrying out its statutory duty – decision grounded on the decision-making powers reposed in Tribunal. |
| Migration Act 1958, ss.411, 412, 414, 415, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210 |
| Applicant: | SZLAE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2032 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 30 November 2007 |
| Date of Last Submission: | 30 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 November 2007 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2032 of 2007
| SZLAE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant claims to be a citizen of India where he claims his homosexuality led to him being beaten, ostracised and discriminated against. The applicant left India for Australia where, he alleges, he can express his sexual orientation without suffering discrimination.
The applicant claims to fear persecution in India because of his sexuality.
On arrival in Australia the applicant lodged an application for a protection visa. This was refused by the Minister's delegate on 6 March 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal's decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 7 of the Tribunal’s decision (Court Book (“CB”) pages 81 – 84). Relevantly, they are in summary:
Protection visa application form
In his protection visa application, the applicant made the following claims:
a)he is homosexual and began having sexual relations with other males in June 2005;
b)on 30 March 2006 when his parents discovered his sexual activities, he was beaten and rejected;
c)the applicant’s sexual orientation became known and he was ostracised by the community and discriminated against by tertiary institutions;
d)his father told him that religion required him to burn the applicant alive but he could not do so as the applicant was his only son;
e)one of his lovers was attacked by his relatives and physically injured; and
f)the applicant came to Australia to express his sexual orientation without suffering discrimination.
Tribunal hearing
At the Tribunal hearing, the applicant made the following additional claims:
a)he has not expressed his sexuality in any way since he arrived in Australia because he has no money and thus did not go to what the Tribunal described as “establishments that catered for the gay community”. The applicant also explained his lack of contact with the Australian gay community by saying that his English is poor; and
b)he cannot relocate to another part of India because gay men in India do not practice safe sex and he would die from the “disease”.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant is homosexual and wants to live as a gay man, noting that:
i)the applicant’s evidence indicated that he did nothing to express his sexual orientation since he arrived in Australia, nor did he demonstrate any interest in a gay lifestyle;
ii)the Tribunal was not satisfied that the applicant’s explanation that he possessed limited English skills and no money adequately explained his lack of knowledge or interest in meeting other homosexual men or participating in gay community activities;
iii)the applicant’s knowledge regarding the circumstances of homosexual men in India was as limited as his knowledge of the Sydney gay scene;
iv)the applicant was not aware of the major issues confronting homosexual men in India. He was not aware of the Indian law that criminalised sexual activities between men nor was he aware of the Naz Foundation which is the major gay group in India;
v)he also knew nothing of the gay scene in New Delhi which has the largest gay community in India; and
vi)there was no one who could corroborate the applicant’s claim that he was gay;
b)as such, the Tribunal found that the applicant fabricated the claim to be homosexual to enhance his protection visa application; and
c)the Tribunal did not accept as credible the applicant’s claim that he was at risk of harm in India because of his homosexuality nor did it accept the applicant’s related claims that he had difficulties with his parents and others in India because of his sexuality.
Proceedings in this Court
The grounds of the application were pleaded as follows:
1. Serious harm.
2. Economic hardship.
3. Physical harassment.
In his affidavit sworn 2 July 2007 the applicant further alleges that:
a)the Tribunal did not act in good faith; and
b)the Tribunal's decision was not capable of reference to the decision-making power given to the Tribunal.
Grounds pleaded in the application
The grounds of review pleaded in the application appear to state the basis of the applicant's claim to be entitled to a protection visa. As such they do not disclose a basis on which the Tribunal's decision could be considered to be affected by jurisdictional error. These are proceedings for judicial review of the Tribunal's decision and are concerned with the procedures adopted and applied by the Tribunal, not with whether the applicant's claim for a protection visa has any merit.
In proceedings for judicial review the applicant cannot re-agitate the merits of his claim and the Court cannot substitute its own view of the merits of his claim for that of the Tribunal. The applicant appears to invite the Court to arrive at conclusions on the facts different from those arrived at by the Tribunal but in the absence of any suggestion that there has been an error of jurisdictional fact, which is not the case here, such a course is not open to the Court.
Here, the findings and conclusions by the Tribunal were open to it on the evidence before it. That being so, the matters raised by the applicant in his application filed in this Court do not disclose jurisdictional error on the part of the Tribunal.
Tribunal did not act in good faith
Turning to the allegation that the Tribunal failed to act in good faith, the principles applicable to a determination of whether the Tribunal's decision constitutes a bona fide attempt to exercise the power of review vested in it was summarised by the Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 755 – 756. That summary includes the following points:
·An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker.
·The presence or absence of honesty will often be crucial.
·The circumstances in which the Court will find an administrative decision-maker has not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
An allegation of a want of good faith was also considered by Gyles J in NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210. There his Honour observed that an allegation that a decision-maker did not act in good faith is, in substance and effect, an allegation that the Tribunal acted in bad faith and his Honour further observed that the seriousness of such a charge cannot be overestimated. As to such an allegation, his Honour said:
Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A Tribunal Member cannot blunder into bad faith, no matter how stupid and careless the Tribunal Member is, any more than a person can blunder into deceit or wilful blindness. What is required to make out this case is to find that the Tribunal Member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him - tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples. (references omitted) (at 219 [24])
Here, nothing has been advanced in support of the allegation other than the allegation itself. The only evidence which would touch on the subject is contained in the Court Book and it provides no basis for concluding that the Tribunal was unfaithful to its duty. Rather, the Tribunal's decision record indicates a conscientious approach to its task which disposes of the allegation that it did not act in good faith.
Tribunal's decision was not capable of reference to the decision-making power given to the Tribunal
Turning to the allegation that the decision is not capable of reference to the decision-making power reposed on the Tribunal, the power to which the applicant refers is found in s.415 of the Act which, amongst other things, empowers the Tribunal to exercise the powers and discretions conferred by the Act on the delegate. Once a valid review application is made to the Tribunal, s.414 of the Act requires the Tribunal to review the delegate's decision. That is exactly what happened here.
Here the Tribunal was empowered, indeed required, to conduct a review and exercise the power given to it by s.415 once it found that the delegate's decision was an RRT-reviewable decision under s.411 of the Act and that the applicant had made a valid application for review under s.412 of the Act. It made such findings at page 2 of its decision (CB 79) and thereupon embarked upon the review which was mandated.
In conducting that review and reaching its conclusion, the Tribunal employed the power conferred on it. As the decision was firmly grounded on the decision-making power reposed in the Tribunal, this ground cannot succeed.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 7 January 2008
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