SZLJN v Minister for Immigration

Case •

[2008] FMCA 352

•

4 March 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLJN v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 352
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of India claiming fear of persecution for reason that he is a homosexual – whether Tribunal breached Migration Act 1958 (Cth) s 424A – no reviewable error.
Migration Act 1958 (Cth), ss.422B, 424A
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
SZIWL v Minister for Immigration & Citizenship [2007] FCA 1260
SZBDF v Minister for Immigration & Multicultural Affairs [2005] FCA 1493
Applicant: SZLJN
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2979 of 2007
Judgment of: Scarlett FM
Hearing date: 4 March 2008
Date of Last Submission: 4 March 2008
Delivered at: Sydney
Delivered on: 4 March 2008

REPRESENTATION

Counsel for the Applicant: Nil
Appearance for the Applicant: Appeared in person
Appearance for the Respondents: Ms Nanson
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The application is dismissed.

  2. The applicant is to pay the first respondent’s costs fixed in the sum of $4,650.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2979 of 2007

SZLJN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

  1. The applicant is a citizen of India.  He asks the Court to set aside a decision made by the Refugee Review Tribunal on 15th August 2007.  The Tribunal did not grant his application for a protection visa.  Instead, the Tribunal affirmed the decision of a delegate of the Minister not to grant him a protection (Class XA visa).

  2. The applicant asks the Court for a declaration that the Tribunal decision is not valid and has no effect. He further asks the Court for an order in the nature of a writ of mandamus to remit his application back to the Refugee Review Tribunal to be heard according to law. He also asks that he should not be removed from Australia until a decision is made. The applicant claims that the Tribunal breached procedural fairness in making that decision, and also committed a breach of s 424A of the Migration Act. The Minister has filed a response denying that the application made by the applicant has raised any arguable case for the relief that he claims.

  3. The background to this matter is that the applicant arrived in Australia from India on 3rd March 2007.  On the 29th of that month he applied to the Department of Immigration & Citizenship for a protection (Class XA) visa. He claimed to fear persecution if he were to return to India because he is an unskilled Indian Punjabi Sikh homosexual person. He claimed that he had twice been charged for his homosexuality and to have been imprisoned for one month. He claims that another charge is now being investigated. He does not wish to be imprisoned again because of his homosexuality, nor does he wish to be abused by society and the police.

  4. On 27th April 2007 a delegate of the Minister for Immigration & Citizenship refused the applicant’s application for a protection visa. On 8th May 2007 the applicant made an application to the Refugee Review Tribunal for a review of that decision. On 3rd July 2007 the Tribunal wrote to the applicant, care of his migration agent. The letter told the applicant that the Tribunal had considered the material before it about his case, but was unable to make a favourable decision on that information alone. In the letter the Tribunal invited the applicant to attend a hearing of the Tribunal at 11:30 am on 25th July 2007. The applicant would be able to give oral evidence and present arguments in support of his claim at that time.

  5. The applicant did indeed attend the Tribunal hearing. He gave evidence, with the assistance of an interpreter, in Punjabi. After the hearing, but on that same day, the Tribunal gave to the applicant a letter dated 25th July 2007 written under the provisions of s 424A of the Migration Act. That letter was headed:

    Invitation to Comment on Information in Writing.

  6. The letter invited the applicant to comment on information that the Tribunal considered would, subject to any comments that he made, be the reason, or a part of the reason, for affirming the decision that was under review. The letter set out five different pieces of information relating to his application for a visitor’s visa, and relating to the applicant’s passport. The letter told the applicant in respect of the first piece of information from his visitor’s visa application where he stated that he was married and had a daughter, that the information was relevant because it may raise questions about the applicant’s sexuality and about the truthfulness of the information that he provided in his protection visa application.

  7. There was information from the visitor’s visa application stating that the applicant was self employed, but the protection visa application stated that the applicant had never been employed. The applicant stated that he suspected that his agent in India provided bogus documents about his employment to get an Australian visa. The letter told the applicant that the information was relevant because the extensive documentation provided to support his visitor’s visa application contrasted with the scant evidence provided to support his protection visa application. That might lead the Tribunal to infer that the information about his employment and income in the protection visa application was incorrect, and that other claims were also incorrect.

  8. The Tribunal referred to the applicant’s visitor’s visa application and noted that his passport showed that he already had a visa valid for the United Kingdom. The Tribunal considered that information to be relevant because the applicant’s failure to travel to the United Kingdom earlier, using the visa that he had, and his delayed departure for Australia after his obtaining his visa, both suggested that he did not fear persecution in India. Instead it suggested that he planned his departure from India and chose to travel to Australia because it was his preferred destination. The Tribunal also invited comment on other potentially adverse information that was presented to it at the hearing. Again, the letter told the applicant why that information was considered relevant. The letter invited the applicant to give comments in writing about the information, which the letter told the applicant:[1]

    All the above information is relevant to the review because it may cast doubt on your credibility as a witness.

    [1] See Court Book at 97

  9. The letter asked the applicant to provide written comments by


    8th August 2007

    .

  10. The Tribunal on 26th July 2007 forwarded to the applicant’s migration agent a copy of the tape recording of the hearing. The Tribunal signed its decision on 15th August and handed that decision down on


    4th September 2007

    . A copy of the Tribunal decision record appears at pages 166 to 179 of the Court Book. The Tribunal considered in that decision the applicant’s claims in evidence, including evidence given at the Tribunal hearing. The Tribunal referred to the contents of the s 424A letter and noted that it had received no response to that letter. The Tribunal’s findings and reasons are set out on pages 174 through to 178 of the Court Book. The Tribunal accepted that the applicant was a national of India on the basis of his passport and his oral evidence. The Tribunal also accepted that the applicant was a Punjabi Sikh, based on his name and place of origin and in the absence of any contrary indication. However, the Tribunal did not accept that the applicant had given truthful, basic information about his family, his employment and his life in India generally.

  11. The Tribunal then set out the reasons why it considered that the applicant had not given truthful, basic information. The Tribunal considered the applicant’s claim to fear persecution as a homosexual and examined that claim in detail. The Tribunal accepted for the purposes of the decision that male homosexuals in India form a particular social group. Accordingly, the Tribunal found that the applicant’s claims to fear persecution for reason of his homosexuality are convention related. The Tribunal then considered the applicant’s claims, but found on the material available to it that the applicant was not a homosexual and would not be perceived as one.

  12. The Tribunal then set out its reasons on pages 175 and 176 of the Court Book. The Tribunal found that the applicant was not a homosexual and the Tribunal had noted the applicant’s advice on his application for a protection visa that he would provide further evidence if necessary, but the applicant had not provided any comments on the adverse information put to him in the letter written under s 424A of the Act. The Tribunal also noted that the applicant had not sought to submit any further evidence to the Tribunal.

  13. The Tribunal did not accept that the applicant had suffered any harm as a result of his claimed homosexuality. That followed from the Tribunal’s finding that he was not a homosexual, and the Tribunal’s view that the applicant was not a witness of truth. The Tribunal considered the applicant’s descriptions of instances of past harm and came to the conclusion that those incidents did not occur. The Tribunal set out its reasons for that finding. The Tribunal found the applicant had not suffered any past harm in India for reasons of his now dismissed homosexuality, or for any other reason, and dismissed all of his claims of past harm.

  14. The Tribunal referred to the applicant’s reference at the hearing to some scarring on his arm.  The Tribunal accepted that the applicant had suffered an injury, but did not accept that the injury was inflicted by the police or by anyone else for reasons of the applicant’s claim to be a homosexual.  The Tribunal noted that in his protection visa application the applicant stated that he feared persecution as[2]:

    [2] See Court Book at 178

    An unskilled Indian Punjabi Sikh homosexual person.

  15. The Tribunal, having dismissed the applicant’s claims to be homosexual and to have suffered past harm for that or any other reason, considered the residual elements of his claim as a person who claims to be unskilled and an Indian Punjabi Sikh. The Tribunal accepted that the applicant is an Indian Punjabi Sikh, but it was not prepared to accept that the applicant was unskilled, given the Tribunal’s overall adverse view of the applicant’s credibility. The Tribunal went on to find:

    Neither the applicant’s evidence nor any other material suggests that he faces a real chance of persecution in India for reasons of his ethnicity as a Punjabi Sikh.

  16. The Tribunal noted that it had considered the applicant’s claims individually and cumulatively, and did not accept his refugee claims and found that he was not a homosexual, nor would he be perceived as such.  The Tribunal dismissed the applicant’s claims of consequent past harm, and did not accept that the applicant is subject to any ongoing investigations.  The Tribunal was not satisfied that the applicant faced a real chance of persecution in India for reason of his ethnicity as a Punjabi Sikh.  The Tribunal was not satisfied the applicant had a well founded fear of convention related persecution, and affirmed the decision not to grant the applicant a protection (Class XA) visa.

  17. The applicant commenced proceedings for a review of the Tribunal’s decision in this Court on 26th September 2007.  He filed an application and an affidavit in support.  In his affidavit in support he claimed:

    The Tribunal did not give me natural justice.  It breached procedural fairness in deciding my matter.

  18. In his application the applicant repeated his claim that the Tribunal breached procedural fairness in making a decision, and also breached the provisions of s 424A of the Migration Act. The applicant did not file a written outline of submissions, or an amended application. He did, however, attend Court. When asked by the Court to expand on his claims, the applicant complained that he had not received procedural fairness because his story that he told the Tribunal was true, but the Tribunal did not believe him. The applicant was not able to give any particulars of his claim of a breach of s 424A of the Migration Act. It is clear that the applicant’s grievance with the Tribunal is the Tribunal’s failure to accept the truthfulness of his evidence. He asked the Court to remit his matter to the Tribunal so that another hearing could be conducted.

  19. The solicitors for the Minister filed an outline of submissions on


    28th February 2008

    .  They submit that in respect of ground 1 that the Tribunal had breached procedural fairness in making the decision, that no particulars were provided in support of the ground and no transcript had been filed.  Accordingly, they submitted that the Court was unable to go beyond the Tribunal’s account of the hearing (see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs).[3]

    [3] [2004] FCAFC 241 at [21].

  20. The Tribunal’s account of the hearing indicated that the applicant was given an opportunity to present his claims and to respond to the issues of concern that the Tribunal raised.  There was no evidence that the hearing had been truncated or the applicant was in any way prevented from giving evidence.  The applicant was given written notice of the Tribunal’s concerns on the day of the hearing, and was given time to provide information in response, but did not take advantage of that opportunity (see SZIWL v Minister for Immigration & Citizenship).[4] 

    [4] [2007] FCA 1260.

  21. It was also submitted that s 422B of the Migration Act which does apply has the effect that s 424A is an exhaustive statement of the Tribunal’s obligations to put matters to an applicant (see SZBDF v Minister for Immigration & Multicultural Affairs).[5]  There was no evidence before the Court, or any particulars provided, in support of any claimed breach of procedural fairness.

    [5] [2005] FCA 1493 at [18].

  22. As to the alleged breach of s 424A of the Migration Act, the applicant had provided no particulars in support of the ground. It is also submitted that the Tribunal complied fully with the requirements of s 424A.

  23. In dealing with the applicant’s claims, I would indicate first of all that I am unable to see how it was that the applicant did not receive procedural fairness. He was invited to attend the hearing. In the letter inviting him to attend a hearing the Tribunal made it clear that the information that it had was not sufficient to make a decision in his favour. The applicant attended the hearing, and there is nothing to suggest that he was unable to give his evidence. He was provided with an interpreter and there was no complaint made about difficulty with interpreting. The Tribunal had written to the applicant under the provisions of s 424A of the Migration Act putting certain matters to him, but the applicant did not provide any comments on that letter.

  24. I am mindful of the fact that s 422B of the Migration Act applies to these proceedings. The fact is that the applicant has not made out any breach of procedural fairness, either under the Act or at common law. There is nothing to indicate that the Tribunal proceedings were in any way unfair. In respect of the second ground the applicant had not provided any particulars to show why the Tribunal had not complied with the provisions of s 424A of the Migration Act as he claims. Indeed, it is clear that the evidence which the Tribunal considered to be weighty was put to the applicant for his comment in a letter written under the provisions of s 424A of the Act, and handed to the applicant after the conclusion of the hearing. The applicant could have replied to that letter and provided comments, but apparently chose not to.

  25. I am not of the view that the applicant has shown any breach of s 424A of the Migration Act. I am not of the view that the Tribunal did not give the applicant natural justice as he claims in his application. I am not of the view that there is any breach of procedural fairness. The applicant’s grounds in his application and the ground in his affidavit must therefore fail. I am mindful of the fact that the applicant is not legally represented in these proceedings. I have read through the Tribunal decision independently of either the applicant’s application or the Minister’s submissions.

  26. I am not able to discern any arguable case for a jurisdictional error on the material before me. In the absence of jurisdictional error the Tribunal decision is a privative clause decision and as such it is final and conclusive, and not subject to orders in the nature of declaration or mandamus that the applicant seeks. It follows therefore that the application must be dismissed.

  27. The Minister seeks an order for costs against the applicant in respect of these proceedings. The amount sought is $4,650.00. The applicant complains that that amount is too high. The first thing to be considered is whether a costs order should be made. It is trite law that costs follow the event. In other words, a successful party if legally represented can usually expect an order that the unsuccessful party reimburse them for their legal costs, or at least a reasonable proportion of them. The amount sought is $4,650.00. That is a figure within the range provided in the Federal Magistrates Court Rules. I am satisfied that this is a matter where I should make an order for costs in favour of the first respondent Minister. The applicant claims that the amount of $4,650.00 is too high. I am not, however, persuaded that that is the case. I believe that it is an appropriate figure.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  18 March 2008


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Cases Citing This Decision

1

SZLJN v Minister for Immigration and Citizenship [2008] FCA 768