SZLGN v Minister for Immigration - [2008] FMCA 558

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLGN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 558

MIGRATION – RRT decision – Indian claiming fear of persecution for membership of particular social group – disbelieved by Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 425

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZIOG v Minister for Immigration & Citizenship [2007] FCA 538
SZIOG v Minister for Immigration & Anor [2006] FMCA 1450

First Applicant:

SZLGN

Second Applicant:

SZLGO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2728 of 2007

Judgment of:

Smith FM

Hearing date:

21 April 2008

Delivered at:

Sydney

Delivered on:

21 April 2008

REPRESENTATION

Counsel for the Applicants:

Applicant husband in person

Counsel for the First Respondent:

Mr J Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2728 of 2007

SZLGN

First Applicant

SZLGO

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicants are a husband and wife who arrived in Australia in March 2007. On 1 May 2007 applications for protection visas were lodged on their behalf by a migration agent, Mr Raymond Solaiman. Only the husband made claims to be a refugee, and I shall refer to him as “the applicant”.
The protection visa application explained his reasons for leaving his country of nationality, India, only as follows:
Applicant claims subject to persecution in the hand of non private agents, “criminals, thugs, extortionists”, as a result being “businessmen” and the state refused protection as a result of unwillingness to comply with the unlawful demand of bribes.
Applicant also claims to be bisexual and he suffered serious harm as a result of his sexual orientation. More details will be provided at later stage when requested.
No details were subsequently given to the Department of Immigration, and no supporting evidence was ever given to either the Department or the Refugee Review Tribunal. A delegate refused the application on 15 May 2007.
On appeal to the Tribunal, the applicant attended a hearing on 21 August 2007. He was questioned about his claims, and about his travel overseas in 2006, as revealed in his passport which he showed to the Tribunal. He told the Tribunal that he had been operating a business transporting goods and produce in his State and beyond. He claimed that after a homosexual encounter he had had further such encounters, and that this was found out in his village. People then mistreated him by shunning him, talking about him, pointing at him and ignoring him. He said that he would not go to the police if he were mistreated, because he was aware of the fact that the Indian penal code had an offence of “unnatural offences”.
The Tribunal tried to obtain more details about his homosexual activities, and also queried him about his marriage. It questioned him about his claim that people demanded money under threat of publicising his sexual activities. It questioned him about his travel in late 2006 to Hong Kong, Macau, Thailand, Singapore, Indonesia and Sri Lanka, in which the applicant claimed to have been seeking refuge. The Tribunal put to him that it appeared more to be the travel of a trader.
The Tribunal gave its decision orally to the applicant at the end of the hearing. It subsequently handed down a written statement of reasons. Under the heading “Findings and Reasons”, the Tribunal said that the treatment claimed to have been suffered by the applicant “is not what one would reasonably regard as serious harm amounting to persecution”.
It said that the claimed blackmailing of the applicant suffered from problems of credibility, and it formed a definite view that these claims “are not truthful”. The Tribunal found that the applicant’s claim to have sought protection in countries he visited in 2006 was not consistent, and that it was “lacking in credibility”. It also referred to changes in the applicant’s evidence about where he had lived in India. It said:
The poor quality of the Applicant’s evidence regarding his efforts over the years to seek protection from the treatment he suffered or feared leaves the Tribunal disbelieving that the Applicant’s travel to Australia was motivated by fear of persecution. The Tribunal finds no credible evidence of genuine fear of persecution in the Applicant’s case.
(emphasis in original)
The Tribunal referred to the need for particular care in assessing claims about sexual orientation, and it accepted that the applicant was claiming to be a member of a “particular social group” within the Refugee’s Convention. However, after assessing the applicant’s evidence about his homosexual experiences, it arrived at a conclusion that it was not satisfied about any of the applicant’s “substantive claims”. It did not accept that his “claimed fear of persecution is a genuinely‑held fear” and did not accept that he was a member of any relevant particular social group, such as male homosexuals or male bisexuals or males who have or are disposed to having sexual relations with other men. The Tribunal was therefore not satisfied that he had a well‑founded fear of being persecuted in India for a Convention‑related reason.
The applicant now asks the Court to set aside the Tribunal’s decision, and to send the matter back to the Tribunal for further consideration. I can only make these orders if I am satisfied that the Tribunal’s decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant’s original application made unparticularised contentions of breach of s.424A of the Migration Act 1958 (Cth), and breach of “natural justice hearing rule” and “procedural fairness”. In the absence of particulars, I have not been able to identify any substance in these contentions.
The applicant was represented by counsel at a directions hearing, and that person appears to have prepared an amended application which was filed on 19 November 2007. The applicant husband attended today unrepresented, and has not been able to make any submissions to show jurisdictional error. I shall however address the four grounds set out in the amended application.
The first ground with its particulars is:
Ground 1. WELL‑FOUNDED FEAR: The Refugee Review Tribunal made a jurisdictional error when it misapplied the express and implied meaning of term “well founded fear” and “refugee” from the UN Convention. (1) The Tribunal erred in adopting an unduly harsh approach to the well‑founded fear.
Particulars: The Tribunal adopted a line of questioning designed to establish the harm from the perspective of the Applicant persecute asking why he would be harmed rather than addressing as to the motive.
The contended departure from the proper application of the definition of ‘refugee’ in the Refugees Convention is that the Tribunal adopted “an unduly harsh approach to the well‑founded fear”. However, this appears to present a criticism of the merits of the Tribunal’s reasoning, rather than identify legal error. To the extent that the reference to “unduly harsh” invokes an argument which has been better put to me by different counsel in SZIOG v Minister for Immigration & Anor [2006] FMCA 1450 (upheld by Bennett J in SZIOG v Minister for Immigration & Citizenship [2007] FCA 538), I do not consider that it raises jurisdictional error for the reasons I explained in that judgment.
The particulars to this ground are obscure. For myself, I am unable to identify any passage in the Tribunal’s reasoning where it asked itself a wrong question. It was appropriate for the Tribunal to consider both the truth of the applicant’s claims to have been mistreated, including his claim to have been perceived to be a homosexual person, as well as to consider whether the applicant subjectively had a fear of serious mistreatment. The Tribunal’s reasoning shows that it arrived at conclusions that he would not be perceived as a homosexual person, and that he did not have a genuine subjective fear of being persecuted for that reason. In my opinion, its reasoning does not reveal any jurisdictional error.
If this particular in its reference to “adopted a line of questioning designed” is suggesting that the Tribunal approached its hearing with a closed mind, looking for reasons to reject the claim rather than genuinely assess the applicant’s evidence, I can find no substance for that contention in the evidence before me. The Tribunal’s reasoning suggests that it gave full and genuine consideration to the applicant’s evidence, notwithstanding that his claims had been so inadequately presented in his visa application.
Ground 2 of the amended application and its particulars is:
Ground 2. The Tribunal identified wrong issue, asked itself wrong question, failed to consider relevant and relied on irrelevant materials.
Particulars: The Tribunal erred in asking questions and relying only on the material the perspective of putative persecutors. The applicant claims that he has fear of harm because of his membership of particular social group, “homosexual”. The Tribunal member was aware of Article 377 of the Indian Penal Code which prohibits certain acts commonly associated with homosexuality, but did not account the Applicant’s oral evidence with regard to his fear of harm and a real chance of harm because of homosexuality.
As I have indicated above, I do not accept that the Tribunal made any of the errors contended in this ground. The Tribunal did not rely “only” on the “perspective of putative persecutors”. It did consider whether the applicant had a genuine subjective fear of harm because of homosexuality. I am not persuaded that the Tribunal failed to consider the significance of Article 377. It was discussed with the applicant at the hearing, and was probably in the mind of the Tribunal when assessing his evidence.
Ground 3 of the amended application is:
Ground 3. The Applicant claims that he was denied procedural fairness when the Tribunal member formed the view about the Applicant’s status before hearing. The Tribunal misapplied the test or alternatively misinformed the applicant about the test.
Particulars: The Applicant said many places during hearing that he wants forward relevant evidence with regard to his claim but he did not get chance to present his evidence in support of his claim.
There was a communication gap between him and the Gujarati language interpreter. Applicant could not understand nearly half of the questions asked by the Tribunal because of misunderstandings of the interpreted words from Gujarati to English. The Applicant said that he has limited knowledge of English and could not understand legal words.
In relation to this ground I accept the following submission from counsel for the Minister.
Ground Three: Denial of procedural fairness
9.This ground relies on a number of factual assertions none of which are proven. These are (as they appear in the amended application):
(a)the Tribunal Member formed the view about the applicant’s status before the hearing;
(b)the applicant said many places during hearing that he wants forward relevant evidence with regard to claim;
(c)he did not get the chance to present evidence in support of his claim;
(d)there was a communication gap between the applicant and the Gujarati language interpreter;
(e)the applicant could not understand nearly half of the questions asked by the Tribunal;
(f)this was because of misunderstandings of the interpreted words from Gujarati to English; and
(g)the applicant said that he has limited knowledge of English and could not understand legal words.
10.In the absence of proof of these matters, this ground must fail.
The applicant was given ample opportunity to present to the Court a transcript of the hearing and other evidence, and in the absence of evidence to support any of the contentions made in this ground I must reject them all. There is no suggestion in the Tribunal’s description of the hearing that there was any problem of communication with the applicant, nor that he was denied the opportunity required to be given to him at a hearing under s.425 of the Migration Act.
Ground 4 of the amended application with its particulars is:
Ground 4. The Tribunal made a jurisdictional error in failing to examine all other sources of available country information and other evidence and to make a finding whether the applicant had a well founded fear by reason of membership of a particular social group.
Particulars: The Applicant claims that the Tribunal member made decision based on the old and one sided country information. The Country information used by the Tribunal was not sufficient and up‑to‑date. The truth is that Homosexuals are treated in India very badly and discreetly. The Tribunal member failed to understand the cultural and social phenomenon of the Indian Society and based its decision on very limited information.
As with the other grounds, this ground appears to have an existence separate from its particulars. I am unable to identify what the “other sources of available country information” are to which it refers. The Tribunal appears to have brought to its judgment a knowledge of relevant general country information concerning India, and I am not persuaded that there was any other information which it had before it which it overlooked.
It was not the duty of the Tribunal to go searching for other country information to support the applicant’s claims (cf. Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
The particulars in essence, in my opinion, argue with the Tribunal’s assessment of the applicant’s claims against country information, and do not identify jurisdictional error affecting its decision.
For the above reasons, I am not persuaded that any of the arguments made in the amended application should succeed. I must therefore dismiss the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 14 May 2008