SZLQS v Minister for Immigration & Anor - [2008] FMCA 972

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLQS v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 972

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of Tribunal decision – citizens of India who are husband and wife claiming fear of persecution because of the husband’s bisexuality – where applicant wife made her own claim for refugee status – where applicant wife did not attend the Tribunal hearing – where applicant wife did not attend Court.

Migration Act 1958 (Cth), ss.91R, 412A, 422B, 424A, 425, 425A, 441A, 474, 476

SZLGN & Anor v Minister for Immigration & Anor [2008] FMCA 558 cited.
SZKFX v Minister for Immigration & Anor [2008] FMCA 292 cited.
SZLOG & Anor v Minister for Immigration & Anor [2008] FMCA 223 cited.
SZJMT & Anor v Minister for Immigration & Anor [2007] FMCA 1615 cited.
Khan v Minister for Immigration [2007] FMCA 419 distinguished.
SZKDB & Anor v Minister for Immigration [2007] FMCA 1036 followed.
SZIHI v Minister for Immigration & Citizenship [2007] FMCA 1332 cited.
MZXSP v Minister for Immigration & Citizenship [2008] FMCA 374 cited.
SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 followed.
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed.
Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 followed.
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 followed.
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 followed.

Applicant:

SZLQS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3580 of 2007

Judgment of:

Scarlett FM

Hearing date:

2 July 2008

Date of Last Submission:

2 July 2008

Delivered at:

Sydney

Delivered on:

2 July 2008

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondents:

Ms Sirtes

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Application is dismissed.
The Applicants are to pay the First Respondent’s costs fixed in the sum of $4400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3580 of 2007

SZLQS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

There are two applicants in this case. They are citizens of India. They asked the Court to review a decision of the Refugee Review Tribunal. The decision was signed on 11 October and handed down on 1 November 2007. The Tribunal affirmed the decisions of a delegate of the Minister not to grant the applicants protection (Class XA) visas.
The applicants have commenced proceedings for review of the decision and in their amended application filed 9 April 2008 asked for orders:
(a)Quashing or setting aside the decision of the first respondent made on 21 May 2007.
(b)A declaration that the decision made by the second respondent, on 11 October 2007, and handed down 1 November 2007, is null and void and of no effect.
(c)An order remitting their application to the Tribunal for rehearing.
(d)A writ of prohibition restraining the first respondent, the Minister, from acting on the Tribunal decision and restraining the Minister from taking any action on the purported decision made by the delegate on 21 May 2007.
(e)Further, or in the alternative, the applicants asked for an order restraining the Minister from serving removal orders pending the determination of this application.
One immediate difficulty arises in that Orders 1 and 4 relate wholly or in part to the decision of the Minister's delegate on 21 May 2007. The Federal Magistrates Court has no jurisdiction to review the delegate’s decision, which is a primary decision.[1]
[1] See s476(2)(a) of the Migration Act 1958
It is the decision of the Refugee Review Tribunal that is reviewable by this Court. The applicants claim that the Tribunal fell into jurisdictional error by:
a)misunderstanding or misapplying the provisions of s.91R(1)(b) and (c) of the Migration Act by adopting an unduly harsh and stringent approach to the concept of well founded fear;
b)a denial of procedural fairness to the first applicant at the Tribunal hearing;
c)failing to identify the category of the particular social group from which the first applicant comes from;
d)failing to identify the issues to be decided;
e)falling into error in arriving at a decision that the first applicant was not a truthful and credible witness;
f)asking irrelevant questions;
g)pre-judging the decision before the hearing started, which would appear to be an allegation of bad faith;
h)failing to comply with the requirement of s.424A of the Migration Act;
i)denial of procedural fairness and natural justice.
Whilst the applicants' grounds in the amended application are numbered 1 and 2, it would appear to me that all of those grounds can, in one way or another, be gleaned from the statement of grounds and particulars set out in the amended application.
The first respondent, the Minister for Immigration & Citizenship, has filed a response opposing the making of the orders.
The background to this matter is that the applicants, who are husband and wife, arrived in Australia on 22 March 2007. They applied for Protection (Class XA) visas on 1 May 2007. The first matter of relevance is that the applicants each made their own claims to be a refugee. Both the husband and the wife are part C applicants.
The husband claimed that he left India because he is a bisexual man and had been having sex with men regularly. He claims that as a result he was persecuted by neighbours and the police. He claimed that he was charged by the police for having anal sex with men and locked up. He claims the police beat him up and did not give him any food or water. He claimed that his wife was raped by the police when she went to the police station to seek his release. He claimed that she is now mentally incapable to communicate and look after the couple's children.
The first applicant claims a well-founded fear of persecution if he were to return to India because Indian society is extremely hostile to homosexuality and the law prosecutes anyone who has anal intercourse and singles out anyone who has sex with men.
The second applicant, the wife, submitted her claim to be a refugee relying, in part, upon the claim of her husband. She said:
I left India because my husband is a bisexual and he was arrested by the police. He was locked up by the police without any food and water. When I went to the police station the policemen raped me one after the other. I do not want to live in a country where the law enforcement agency rapes inside custody[2].
[2] See Court Book at page 33
A delegate of the Minister considered the claims by the applicants.

The delegate prepared two separate sets of findings. In respect of the first applicant, the husband, the delegate found it difficult to accept that the applicant had been harassed and mistreated by the police, even though the delegate was willing to accept that the husband was bisexual. The delegate claimed that the applicant's account of harassment lacked details and said that the lack of explanation for the applicant's release from custody after being charged "makes the veracity of his claim doubtful"[3].
[3] See Court Book at page 49
The delegate then went on to consider the reasonableness of relocation to other parts of India. The delegate found that relocation was a viable alternative and set out reasons. Accordingly, the delegate found that the first applicant's fear of persecution on return to India was without basis[4]. The delegate refused the application for a protection visa on

21 May 2007
.
[4] See Court Book at page 49
The delegate prepared a separate set of reasons and findings in respect of the claim by the second applicant, the wife. The delegate noted that the wife feared that she would again be raped or harmed should she return to India because of her husband's sexuality. The delegate was willing to accept that the applicant was sexually abused by police at the station, but noted that she appeared not to have reported the matter to higher authorities. The delegate went on to find:
Moreover, the applicant has not established that she has sought protection from the authorities and such protection was denied[5].
[5] See Court Book at page 51
The delegate then went on to consider the question of relocation and found that this applicant could relocate to other parts of India, like in Mumbai, where homosexuality was generally tolerated. The delegate found that because effective protection was available through relocation the applicant would not face a real chance of being persecuted should she return to India in the foreseeable future.

The delegate refused the wife's application for a protection visa also on 21 May 2007.
The applicants then lodged a joint application to the Refugee Review Tribunal on 7 June 2007. They did not lodge any other documentary evidence with their application and they did not appoint an authorised recipient. They completed section D of the application indicating that they wanted correspondence sent to their address which was a post office box number in a country town in southern New South Wales.
The two applicants each signed the section on the last page of the application, being section F. The first applicant signed under the words saying:
I declare that the information I have supplied on or with this form is complete and correct in every detail. I undertake to inform the Refugee Review Tribunal of any changes to my personal circumstances (eg marital status, changes to the family composition) while my application is being considered. I understand that if I change my contact details and do not inform the Tribunal of my new address the Tribunal may proceed to make a decision on my case, even if it cannot contact me. I have read and understood the information supplied to me in this application form. If this application includes more than one applicant I undertake to inform each other applicant of the contents of any communication from the Tribunal and reply to the Tribunal for them.
The first applicant signed the application and dated it 7 June 2007. The second applicant signed the application and dated it also. She signed the application under these words:
If this application includes more than one applicant I declare that the information I have supplied on or with this form is complete and correct in every detail. I have read and understood the information supplied to me in this application form. Unless I advise the Tribunal otherwise I authorise the Tribunal to communicate with applicant one, or his or her authorised recipient, about this application.
The second applicant then signed and dated the application.
The Tribunal wrote to the applicants on 17 July 2007. The Tribunal addressed the letter to the first applicant and the post office box number given in the application. The letter was headed "Invitation To Appear Before The Tribunal". The letter said that the Tribunal was writing about the applications for review made to the Tribunal by the two applicants, whom it named. The letter went on to say:
The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone[6].
[6] See Court Book at page 59
The letter invited the applicants to attend a hearing at 11 am on

21 August 2007
. The letter said:
Note: Please ensure both applicants attend this hearing[7].
[7] See Court Book at page 59
The first applicant completed the response to hearing invitation and forwarded it to the Tribunal on 9 August 2007. The first applicant attended the hearing of the Tribunal on 21 August 2007. Copies of the passports of both applicants were provided. The first applicant attended the hearing and the Tribunal asked him about his wife. The Tribunal Member said, in the decision record:
I asked the applicant why his wife had not attended the Tribunal hearing. He stated that he had authority to speak on her behalf. I mentioned to the applicant that without an opportunity to speak to his wife the Tribunal would be unable to accept her claims. He stated that he would speak on her behalf. He stated that his wife told him that whatever he told the Tribunal would be what she would say. I mentioned to the applicant that I would like to speak to his wife. He stated that she was not mentally ready. I mentioned to the applicant that the Tribunal did not have any evidence about his wife's inability to give evidence. He stated that they lived together and she had given him authority to speak on her behalf. He stated that she is satisfied with whatever he says on her behalf. I asked the applicant if he was saying that his wife would not be attending the Tribunal. He replied that she was not going to attend the Tribunal[8].
[8] See Court Book at page 99
The Tribunal proceeded with the hearing.
On 23 August 2007 the Tribunal wrote to the first applicant at the post office box number given in the application. The letter was headed "Invitation To Comment On Information In Writing". The letter told the first applicant that the letter was an invitation to him and to the second applicant. The letter said:
A reply to this invitation will be regarded as a joint reply unless the Tribunal is advised otherwise[9].
[9] See Court Book at page 89
The letter which was clearly written to comply with the requirements of s.424A(1) of the Migration Act invited the applicants to comment on information that the Tribunal considered would, subject to any comments they made, be the reason, or a part of the reason, for affirming the decision that was under review. The letter then set out certain items of information based on the claims of each applicant. The letter invited the applicants to provide written comments by

17 September 2007
. There is no evidence that any written comments were received by the Tribunal.
The Tribunal handed down its decision on 1 November 2007. A copy of the Tribunal decision record can be found at pages 95 to 108 of the Court Book. The Tribunal considered the claims by the two applicants in their original applications and referred to the oral evidence given by the first applicant to the Tribunal hearing. The Tribunal referred to the s.424A letter sent on 23 August 2007 and noted that the applicants did not respond to that letter. The Tribunal set out its findings and reasons in the decision record. They are reproduced on pages 106 to 108 of the Court Book.
The Tribunal noted that it had sighted the applicants' passport and accepted that they were citizens of India. The Tribunal noted that both applicants were invited to attend the Tribunal to give evidence but the applicant wife did not avail herself of that opportunity. The Tribunal did not find the applicant husband to be credible on all key aspects of his claims. The Tribunal then set out in some detail what it described as "the following contradictions in plausibility and inconsistencies lead the Tribunal to conclude that the applicant is not truthful or credible"[10].
[10] See Court Book at page 107
After considering that evidence the Tribunal was not satisfied that the first applicant had engaged in sexual activity with men or that he had been the victim of sexual harassment and assault by Muslim men in India. It was not satisfied that he was abducted as claimed, nor was it satisfied that the applicants had been detained by the police as they claimed, or that the applicant wife was raped or sexually assaulted by the police and the Muslim men as they had claimed, or that they were victims of hostility for reasons of religion or the applicant husband's claimed bisexuality. The Tribunal did not accept that the applicants were the subject of any threats or that the applicant husband's business was damaged by Muslim men as was claimed. The Tribunal found:
There is no credible evidence from which the Tribunal could find that the applicants stand at risk of suffering serious harm in the reasonably foreseeable future if they return to India[11].
[11] See Court Book at page 108
The Tribunal was not satisfied that the applicants had a well-founded fear of persecution for a Convention reason and affirmed the decision not to grant the applicants (Class XA) visas.
The applicants commenced proceedings for judicial review by filing an application and an affidavit in this Court on 19 November 2007. They filed an amended application on 9 April 2008. They have not filed any written submissions. The first respondent filed written submissions on 21 May 2008.
The first applicant, the husband, attended Court on the hearing today. He advised that his wife was not attending the hearing and that he would speak on her behalf. He confirmed that she did not attend the Tribunal hearing. The applicant did not wish to say anything further and said that whatever he wanted to say was written in his amended application. The first applicant claimed that his wife had no separate claim. When it was put to him by the Court that she was a part C applicant who had made her own claims to be a refugee he reiterated that he was not aware about her separate claim and was of the belief that they had a joint application.
The amended application sets out what are numbered as two grounds but in my view are a number of grounds. Counsel for the first respondent Minister submitted that the first ground of the application was a pro forma ground and does not disclose any jurisdictional error and should be dismissed. She referred the Court to a number of decisions of this Court in support of her claim, including SZLGN & Anor v Minister for Immigration & Anor [2008] FMCA 558 per

Smith FM; SZKFX v Minister for Immigration & Anor [2008] FMCA 292 per Nicholls FM; SZLGF & Anor v Minister for Immigration & Anor [2008] FMCA 254 per Nicholls FM; SZLOG & Anor v Minister for Immigration & Anor [2008] FMCA 223 per Orchiston FM; and SZJMT & Anor v Minister for Immigration & Anor [2007] FMCA 1615 which is a decision of mine.
Counsel for the Respondent Minister submitted that ground 2 made a variety of allegations, none of which were supported. She submitted that:
a)the claim that the Tribunal failed to identify the relevant particular social group and issues at hand was not borne out by a plain reading of the Tribunal's decision; and
b)the applicant's claim that the Tribunal's questions regarding his homosexual partners were irrelevant, but in her submission it was a matter for the Tribunal as to what matters it questioned the applicant about and that this approach by the Tribunal was not unreasonable, let alone a jurisdictional error; and
c)the applicant's allegation that the Tribunal breached s. 424A of the Act was clearly incorrect, and in fact the Tribunal wrote to the applicants pursuant to s.424A of the Act.
Counsel for the Minister went on to submit that as a model litigant the first respondent had considered the Tribunal's decision independently. In particular, the applicant wife's non-attendance at the Tribunal hearing. Ms Sirtes for the Minister submitted that the applicants were both validly invited to the Tribunal hearing by reason of the following:
a)All applications for review must, in accordance with s.4121A of the Act be made in the approved form;
b)The application for review, signed by both applicants sets out certain information which requires the first applicant to inform each applicant of the contents of any communication from the Tribunal;
c)Further, there was no advisor nominated, or any authorised recipient, but the applicants selected an address for correspondence being a post office box number in a country town in New South Wales;
d)The applicants declared, amongst other things:
Unless I advise the Tribunal otherwise I authorise the Tribunal to communicate with applicant 1, or his or her authorised recipient, about this application.

It is further submitted that the hearing invitation complied in all respects with ss.425, 425A and 441A of the Act.
I was referred to decisions:
a)a decision of my own, Khan v Minister for Immigration [2007] FMCA 419 where I considered what constitutes valid notification pursuant to s.66 of the Act. It was submitted that the decision in Khan can, and ought to be, distinguished from the present situation because s.66 of the Act contains limited provisions for the manner and method of notification to each applicant.
b)It was submitted that the Court should follow the decision of Smith FM in SZKDB & Anor v Minister for Immigration [2007] FMCA 1036 where his Honour found at 33 to 35 that the authority in the declaration in the application was that the secondary applicant also intended to authorise the primary applicant to receive such communications by the Tribunal about the application, including by receiving documents on behalf of the secondary applicant who had given the authority.
In my view, I should follow the decision in SZKDB because it is directly on point, whereas the decision in Khan can quite clearly be distinguished on its facts. In Khan I was not considering the question of notification by the Refugee Review Tribunal to applicants for review. The matter in Khan concerned notification by the Department to applicants for a student visa under s.66 of the Act. In my view, Khan is not relevant to these proceedings and the decision in SZKDB is. It has also been brought to my attention that the decision in SZKDB has been followed by Raphael FM in SZIHI v Minister for Immigration & Citizenship [2007] FMCA 1332 and MZXSP v Minister for Immigration & Citizenship [2008] FMCA 374.
In short, it is submitted on behalf of the Minister that no jurisdictional error has been made out.
Turning to the amended application. The applicants claim the Tribunal erred in law and erred in making findings of well founded fear by adopting an unduly harsh approach to the well founded fear and that the stringent application of the test may also result in error in assessment of the findings in relation to well founded fear.
That ground, as such, does not disclose jurisdictional error.

The particulars refer to the provisions of s.91R(1)(b) and (c) of the Migration Act and refer to serious harm, then go on to complain about the Tribunal's line of questioning.
The first applicant complained that he was confused during the hearing when the interpreter always advised him to "speak in short". There is no evidence in support of this claim. No transcript of the Tribunal hearing has been submitted. There is no evidence that the applicant advised the Tribunal Member that he had become confused.
The first applicant claimed that he was denied procedural fairness when the hearing was conducted in a very stressful situation. There is no evidence that the applicant communicated to the Tribunal that he was suffering from any degree of stress and there is no evidence to show that the questioning by the Tribunal was in any way untoward. Whilst the applicant claimed that irrelevant questions were asked, it is a matter for the Tribunal to decide what questions are relevant because it is the Tribunal that makes the findings of fact.
The second ground claims that the Tribunal made a jurisdictional error when it failed to identify the category of the social group that the applicant husband comes from. To my mind it is clearly not so.

The Tribunal set out at page 98 of the Court Book the first applicant's claims that he left India because he was a bisexual man and had been persecuted by neighbours and police. The Tribunal directed its questioning to that subject and wrote its s.424A letter to the applicants dealing with that subject, inter alia. In the Tribunal's findings and reasons the Tribunal said:
The applicants claim that because of the applicant husband's bisexuality they have suffered serious harm in India[12].
[12] See Court Book at page 106
I am satisfied that the Tribunal correctly identified the particular social group that the applicant claimed to belong to.
The first applicant's claim that the Tribunal failed to identify the issues. In my view, the Tribunal decision makes it quite clear that the Tribunal was well and truly aware of the issues and had set them out.
The applicant claims that the Tribunal concluded that because of contradictions, implausibility and inconsistencies the applicant is not truthful and credible. The applicant claims that to get evidence from India in support of his claim that he is a homosexual or bisexual person is very difficult and complained that the Tribunal asked irrelevant questions, but in my view these are no more than challenges to the merits of the Tribunal's factual findings about the credibility of the first applicant. Credibility is a finding of fact and is solely the province of the administrative decision maker and the Court on judicial review will not interfere in this process so long as there is evidence upon which it is possible for the Tribunal to make those findings of fact.
In this case, there was such evidence. The first applicant had attended the Tribunal hearing and the Tribunal based its decision on the first applicant's evidence to it. The applicant also claims:
That the Tribunal made decision before hearing started and asked very private matter and irrelevant questions.
If this is a claim that the Tribunal prejudged the matter, and if it is a claim of bias, either actual or apprehended, or if it is otherwise a claim that the Tribunal acted in bad faith there is no evidence in support of it. It is well-established in decisions such as SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 that an allegation of bias or bad faith is a serious matter and must be strictly alleged and strictly proved. It will be a rare and extreme case where bias or bad faith can be found purely from reading the reasons for decision of the administrative decision-maker. In this case there is an assertion of bias or bad faith, but there is no proof. There is no evidence.
The first applicant reiterated his claim of being confused and nervous, but, as I said, there is no evidence that this was ever put to the Tribunal. The applicants claim that the Tribunal did not comply with the requirement of s.424A of the Migration Act but the Tribunal in fact wrote to the applicants under the provisions of that section and set out certain information for their comments. No reply was received.
The applicant claims that the Tribunal made the decision on the basis of unreliable information, but does not set out what that information is. The applicant claims to have no access to know which documents were used by the Tribunal to make a decision. There is no evidence to show that any documents were, other than reports of certain cases, the Tribunal s.424A letter, the applicants' own applications which were covered by the s.424A letter, and presumably the application for review. There is no breach of s.424A of the Migration Act.
The applicants claim to have been denied procedural fairness and natural justice, but have provided no particulars and I am unable to see how there was a breach of procedural fairness or natural justice. In any event, s.422B of the Migration Act prescribes that the natural justice hearing rule at common law is not relevant (see Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat[13]). Section 422B(1) provides that the Subdivision in which it is contained, namely Division 4, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
[13] (2006) 151 FCR 214; [2006] FCAFC 61
It is regrettable that the second applicant chose not to attend the Tribunal hearing. The second applicant was an applicant in her own right as a part C applicant. It is hardly surprising that when she did not attend the Tribunal was unable to be satisfied that her claims had been established. There were items of the second applicant's claim that could really only be tested by examination of the second applicant and her husband would not be able to give evidence of the attacks which the second applicant claimed. Because she did not attend it is hardly surprising that the Tribunal could not be satisfied[14].
[14] See SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 and SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306.
I am aware of the fact that the applicants are not legally represented in these proceedings. My own independent reading of the Tribunal decision and supporting material does not disclose any arguable case for jurisdictional error.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by subsection.474(2) of the Migration Act. Privative clause decisions are final and conclusive. they are not subject to declaration or orders in the nature of certiorari, prohibition or mandamus.
It follows that the application must be dismissed on costs.
There is an application for costs on behalf of the first respondent Minister in the sum of $4400. This is an appropriate matter for costs and the figure for costs, namely $4400 inclusive of counsel's fees is an appropriate figure within the rules.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 15 July 2008