SZLDT v Minister for Immigration - [2007] FMCA 1887

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLDT v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1887

MIGRATION – RRT decision – Malaysian claiming fear of loan sharks, and for reasons of religion and homosexuality – history of persecution disbelieved by Tribunal – no jurisdictional error found.

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419

Applicant:

SZLDT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2428 of 2007

Judgment of:

Smith FM

Hearing date:

5 November 2007

Delivered at:

Sydney

Delivered on:

5 November 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms A Mitchelmore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2428 of 2007

SZLDT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia from Malaysia in May 1987, and lived here without permission for 20 years until being taken into detention. After some interviews, he expressed a wish to claim protection as a refugee against being returned to Malaysia. His reasons for claiming to be a refugee were set out in his application form, based on instructions given to a solicitor to whom he had been referred.
The applicant gave a series of reasons for coming to Australia and fearing to return. He said that he had borrowed money from loan sharks to pay for the care of his girlfriend who subsequently died, and that “the ‘loan sharks’ started to chase me everywhere. They threatened to kill me. My friends told me to go overseas to have a break and get away from the ‘loan sharks’”. He also claimed that his life had been difficult in Malaysia because he was Chinese and a Christian. He also said: “there is also another reason why I left. I am bi‑sexual. In Malaysia I could not tell anyone about this. My family, friends or girlfriend did not know”. The applicant’s agent indicated that the applicant had only given her instructions in relation to his bisexuality in a private meeting, because he was embarrassed to tell her about it with the assistance of an interpreter.
The applicant provided no corroborative evidence about any of his claims. He attended a hearing by the Tribunal, after a delegate refused his application on 2 April 2007. He told the Tribunal that his girlfriend had died in late 1985 or early 1986. He said that he had not attended church after he grew up, although his mother was a Christian, and did not attend church very often in Australia. He had poor knowledge of many aspects of Christianity. He told the Tribunal that he had kept his sexuality secret from others in Malaysia, and had also not given expression to it while in Australia.
He presented to the Tribunal a written statement which presented a new reason for having left Malaysia. This was a claim that he had formed a homosexual relationship with a Muslim man after his girlfriend’s death, and had incurred the hostility of that person’s family. The statement claimed that he had been arrested and taken to a police station, where he was threatened and humiliated. He claimed to have escaped from the police station, and to have immediately come to Australia via Singapore.
The Tribunal questioned the applicant about his delay in presenting that claim and other aspects of his case. It also served an invitation for written comments, to which the applicant responded, as did his agent. He claimed that he had decided not to tell his migration agent about his “horrible personal experience” because he did not have any evidence and preferred to keep it secret. He also claimed that the experience had affected his personality.
The Tribunal affirmed the delegate’s decision in a decision handed down on 16 July 2007. It carefully recited all the applicant’s claims and his evidence. It accepted that at the time he left Malaysia the applicant owed money to loan sharks, but was not satisfied that his fears in relation to those people arose from a Convention reason. It also was not satisfied that the Malaysian authorities would refuse him protection against them for a Convention reason.
In relation to the applicant’s claims based on his religion, the Tribunal noted that country information did not suggest that Christians in Malaysia are at risk of persecution. It also thought that “he would not seek to give any public manifestation of his nominal Christianity in Malaysia”, based on his non‑observance in Australia. It found that he would not face persecution in Malaysia for reasons of religion.
The Tribunal then addressed his claims relating to his bisexuality. The Tribunal accepted his explanation as to why a claim was not made until speaking to this migration agent in private. However, it thought that his failure at that time to present the history of his relationship and harassment by police reflected on his credibility. It did not accept the applicant’s explanation for not telling the agent about these events, and found that the claims were “a recent fabrication designed to enhance his claims for protection”. It therefore did not accept that the applicant had suffered harassment, and found that he “is not at risk of arrest or any other kind of harm arising from such a relationship”.
Considering his sexuality generally, the Tribunal said that it was clear that the applicant had taken no steps while in Australia to give effect to any homosexual leanings he might have, and that he claimed to have had no homosexual activity while in Malaysia, apart from the rejected claim. The Tribunal found that he would not seek to give expression to homosexual leanings were he to return to Malaysia, and therefore would not face persecution because of his sexuality. It also thought that country information would not support a risk of persecution.
The Tribunal referred to references in the applicant’s evidence, and in his agent’s submissions, to his psychological condition. It said:
The applicant’s agent has invited the Tribunal to consider the cumulative effect of the applicant’s religion, ethnicity and sexuality in the light of his psychological condition. However neither she nor the applicant himself have brought any corroborative evidence before the Tribunal to indicate that he has any psychological condition. In these circumstances, the Tribunal is not satisfied that he has such a condition.
It concluded:
The Tribunal has considered whether the cumulative circumstance of, being a Chinese man aged in his 50s, who is a nominal Christian and a person with bisexual leanings who does not express them to others, is such as to place the applicant at risk of serious harm in Malaysia. However, given its findings that he will not give expression to his religion and sexuality in Malaysia, the Tribunal finds that he will be in much the same position, to the community at large, as other older Chinese men. The Tribunal does not accept that, as such, he will experience discrimination amounting to serious harm.
The applicant now asks the Court to set aside the Tribunal’s decision, and to send the matter back for reconsideration by the Tribunal. I can only make these orders if I am satisfied that its decision was affected by jurisdictional error. I do not have authority myself to decide whether the applicant’s claims should be believed, nor whether he should be granted a protection visa or any other permission to stay in Australia.
I have considered the Tribunal’s reasoning and procedures for myself, and am unable to identify any jurisdictional error.
The applicant’s original application contained unclearly expressed grounds, which might appear to challenge whether the Tribunal made findings of fact according to an appropriate standard of satisfaction. However, in my opinion the Tribunal’s reasoning reveals no error in that respect.
The other grounds argue with the Tribunal’s reasons for not accepting the applicant’s explanations for his delay in presenting his claimed history of police harassment. The applicant developed this argument to me orally today. He argued that his sexual humiliation by the police had left him extremely hesitant in presenting that claim. He also argued that it had affected his personality, and had caused him to repress not only his sexual feelings, but also his religious beliefs. He claimed that this was the reason why neither of these had been expressed openly in Australia.
However, I do not think his arguments raised more than grounds for challenging the merits of the reasoning followed by the Tribunal. In my opinion, its reasons addressed all of his claims, and also addressed the explanations he had given for the matters of concern to the Tribunal. In my opinion, the Tribunal’s assessment of the position which the applicant would face if he returned to Malaysia did not reveal any errors such as were found in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473. The Tribunal formed a view as to the applicant’s personality as the motivating influence on his overt behaviour both in Malaysia and in Australia, which in my opinion, reveals no misapprehension of law. Once the alleged harassment was disbelieved, it was open to the Tribunal to find that the applicant’s behaviour in Malaysia had not been, and would not be, constrained in the face of persecution (cf. NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at [65]‑[81]).
Taking into account all that the applicant has put to me today, I am not persuaded that the Tribunal’s reasons show any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 13 November 2007