SZLVF v Minister for Immigration
[2008] FMCA 807
•20 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLVF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 807 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether breach of s.65, s.414, and s.91R of the Act – procedural fairness – natural justice – whether unfair, oppressive questioning at Tribunal hearing – whether questioning approach raised apprehension of bias – relevance of questions – whether questions impinged on privacy – need for care with sensitive homosexual claims – whether quasi-police interrogation – quality of interpreting at Tribunal hearing – whether country information properly considered – credibility – merits review not function of judicial review – whether failure to identify social group – whether failure to provide applicant with Tribunal documents – whether breach of s.425 or s.424A of the Act – whether applicant given sufficient time to obtain additional evidence. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 425, 474 |
| NADH v Minister for Immigration [2004] FCAFC 328 Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Abebe v The Commonwealth of Australia (1999) 197 CLR 510 SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62 SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZLVF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3974 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing dates: | 14 April 2008 & 27 May 2008 |
| Date of Last Submission: | 27 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 28 December 2007 and the amended application filed on 27 May 2008 are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000 payable within six (6) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3974 of 2007
| SZLVF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 4 December 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The applicant was born on 24 January 1977. He claims to be a national of India.
The applicant arrived in Australia on 1 April 2007 on an Indian passport issued in his own name.
The applicant lodged an application for a protection visa on 14 May 2007 on the basis that he was being persecuted and harassed in India for being a homosexual.
On 3 August 2007 the delegate refused to grant the applicant’s protection visa, (Court Book (CB) 29-41), on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 10 September 2007 the applicant applied to the Tribunal for review of the delegate’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 19 September 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 16 October 2007 to give oral evidence and present arguments. The applicant attended the hearing on that day.
The Tribunal sent a s.424A letter, dated 17 October 2007, inviting the applicant to comment on information given by the applicant at the Tribunal hearing that it considered would be the reason, or a part of the reason, for affirming the delegate's decision (CB 61-62). The applicant did not respond to that letter.
On 4 December 2007, the Tribunal handed down its decision affirming the delegate's decision.
Applicant’s claims (CB 73-80)
The applicant claimed that he is a homosexual and had several homosexual relationships in India, in particular with a man named Naresh. He stated that Indian society does not tolerate homosexuality. He alleged that his family mistreated him and members of the public beat him on many occasions. He asserted that on one occasion, the police discovered him engaging in sexual activity with Naresh and beat him. He stated that he travelled to Australia because he fears suffering further harm in India by reason of his homosexuality.
The Tribunal’s findings and reasons (CB 81–83)
The Tribunal found that, notwithstanding the difficulty of substantiating claims relating to sexual identity, the applicant was not a homosexual. It found the applicant's evidence given at the hearing to be inconsistent, implausible and unconvincing:
His responses to questions on this subject were notably vague and uninformative and there was no indication that they were based in any genuine, first-hand knowledge, experience or emotions. As put to him at the hearing and in writing, there are serious inconsistencies in his evidence (CB 81)
and:
Given these doubts, inconsistencies and conspicuous vagueness, together with the fact that none of the Applicant’s claims concerning beatings by the police or unidentified members of the public is substantiated from any external source, I am not satisfied as to the truth of his claims to have suffered harm in India (CB 82-83).
The Tribunal found the applicant's lack of interest in pursuing any opportunities to explore the sexual freedoms that Australia might offer him to be significant. It also noted that the applicant had delayed his departure from India for three years after receiving his passport.
For these reasons, the Tribunal did not accept that the applicant had suffered any harm in India on the basis of his sexual preference, or that he had a well-founded fear of suffering any such harm in future.
The proceedings before this Court
The applicant filed the application in this Court on 28 December 2007 setting out 3 grounds of review of the Tribunal’s decision.
The applicant appeared in person before the Court on 14 April 2008 and on 27 May 2008 with the assistance of a Gujarati interpreter. Mr Baird appeared for the first respondent.
The applicant filed in Court on 27 May 2008 an amended application setting out 3 grounds of review.
Grounds of application
The grounds of the application are are:
(1)The Refugee Review Tribunal denied proper application of law to the applicant.
(2)The Refugee Review Tribunal denied natural justice to the applicant.
(3)The Refugee Review Tribunal did not follow due procedure.
The applicant confirmed at the hearing that he relies only upon the amended application (transcript 27/5/08, p 2). In any event, I am satisfied that the grounds of the application are addressed in the amended grounds.
Grounds of the amended application
Ground 1 of the amended application
Ground 1 of the amended application states that:
1.The Tribunal exceeded or constructively failed to exercise jurisdiction in making the decision to affirm the decision of the respondent not to grant the applicant a protection visa; and the Tribunal erred in law arriving at the decision to affirm the decision of the respondent not to grant the applicant a protection visa.
Particulars
1. Subparagraphs 65(1)(a)(II) of the Migration Act 1958 (the Act) required the decision maker in respect of the applicant’s primary application for a protection visa to make a determination as to whether criteria for the grant of the visa prescribed by the Act or the regulations made there under (regulations) were satisfied.
2. The Act at the time of the applicant’s review application to the Refugee Review Tribunal required the RRT to review the decision of the respondent and to that end the Act vested the RRT with powers and discretions conferred by the Act on the Respondent;
3. On 14 May 2007 had made the said application for a protection visa to the DIAC. The DIAC refused the applicant’s application on 3 August 2007. On 10 September 2007, the applicant sought review by the RRT. On 9 January 2008 the RRT made decision to affirm the decision of the DIAC. On 16 October 2007 gave oral evidence before the Tribunal
4. The decision of the RRT infected with error and consequently the RRT acted contrary to law, resulting in a constructive failure to exercise jurisdiction.
5. The Tribunal erred in law and erred in making findings of well founded fear. The Tribunal wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group and due to the religious belief persecution the applicant claims.
Particulars
Section 91R (1)(b) & (c) of the Act requires the persecution to be of serious harm and systemic and discriminatory. The Tribunal adopted a line of questioning designed to establish the harm from the perspective of the applicant persecute asking why would be harmed rather than addressing as to the motive.
The applicant claims that during the hearing, he was confused when the interpreter always advised him to speak in short. He did not explain in details of the events, which amounted persecution. The Tribunal, through a Gujarati interpreter repeated the same questions because of that the applicant confused and nervous. The applicant claims he was denied procedural fairness when the hearing was conducted in a very stressful situation. Many irrelevant questions were asked which had no relations with the main issues. The Tribunal and Delegate made opinion that the applicant fabricated his evidence to gain protection visa without having any correct information about the applicant and his country’s the legal system and their application of system in the practical sense.
Consideration of Grounds
I make the preliminary comment that there is quite a degree of overlap in the particulars provided by the applicant in the three amended grounds of review. Where convenient, therefore, particulars which raise the same issues have been dealt with together under the ground in which they first arise, but with clear attribution to the particular amended ground under which they are made.
Whether Tribunal erred in law
The applicant makes several and often quite generalised statements or assertions under this ground that the Tribunal erred in law. It is difficult to discern precisely what errors of law the applicant says have arisen in this case.
To the extent that the applicant asserts that the Tribunal breached s.65 of the Act by not taking into consideration the relevant criteria, the Tribunal specifically referred, (at the forefront of its setting out of the Relevant Law (CB 71)), to the relevance of this provision that a decision maker must be satisfied that the prescribed criteria for the visa have been satisfied. It then proceeded to refer to the criteria relevant in the context of the grant or refusal of a protection visa, (including s.36(2)(a) of the Act, to which it again expressly referred at the end of its decision, (at CB 83)), in stating that it was not satisfied that the criterion under this subsection had been satisfied.
Contrary to the applicant’s assertion, I consider that a fair reading of the Tribunal decision record demonstrates that it carefully considered the requirements of s.65 in reaching its decision in this case. I thus detect no error of law on this basis.
Equally, to the extent that the applicant asserts that the Tribunal has erred in law “by not reviewing the decision”, I do not accept this contention. The Tribunal clearly complied with its statutory obligation under s.414 of the Act in reviewing the delegate’s decision on the basis that a valid application had been made by the applicant under s.412 of the Act (CB 71). There is nothing on the face of the Tribunal decision record which derogates from the Tribunal having undertaken this task in accordance with its statutory duty, nor that there was any constructive failure on its part to exercise jurisdiction.
There is also nothing to suggest that the Tribunal wrongly applied the law to the facts in regard to “serious harm” and “systematic and discriminatory conduct” pursuant to ss.91R(1)(b) and (c) of the Act. In this regard the Tribunal set out the correct law under the Relevant Law (CB 72), but having assessed all the evidence and material in this case, reached the conclusion that the applicant’s claims were not truthful and that “having considered these claims I am not satisfied that they are anything more than an inventions [sic] adopted by the Applicant at the interview and the hearing. I find that this raises doubts about the truth of his claim to have been beaten on many occasions when detected in homosexual acts” (CB 82).
The Tribunal was thus not satisfied that the applicant had ever suffered harm in India (CB 82, 83) and hence that he did not have:
a well founded fear of persecution because of his claimed sexual orientation or for any other Convention-related reason should he return to India now or in the reasonably foreseeable future and I am not satisfied that he is a refugee (CB 83).
In these circumstances the Tribunal was not required to go further and assess whether any claimed persecution by the applicant amounted to “serious harm” and “systematic and discriminatory conduct”. It was simply not relevant. I therefore detect no wrong application of the law on this basis.
I note however that particular 5 under which the above issue falls, also refers to:
persecution as a member of a particular social group and due to the religious belief persecution the applicant claims [emphasis added].
There is simply no basis in the claims put forward by the applicant of any religious based persecution. Indeed, as the Tribunal states in its concluding remarks:
In the light of all the information before the Tribunal I am not satisfied that the Applicant is homosexual in his sexual orientation as he claims to be. Nor am I satisfied that he has ever suffered any harm in India for this reason. He does not claim to fear harm for any other reason [emphasis added].
Whether procedural unfairness in the conduct of Tribunal hearing
The applicant raises a number of specific issues which each touch upon whether he was accorded procedural fairness by the Tribunal in the conduct of the hearing. Some further matters, namely, the applicant’s access to Tribunal documents is dealt with under ground 2 of the amended application; and a general assertion that the applicant was denied procedural fairness and natural justice, that s.424A of the Act was breached, and that he was not given sufficient time to present supporting material before the Tribunal, are dealt with under ground 3 of the amended application below. I rely also on my reasoning under grounds 2 and 3 in the present context, so far as is relevant.
Questioning by the Tribunal (grounds 1, 2 and 3)
The applicant makes a number of assertions about the manner and nature of the questioning by the Tribunal as a result of which he says he was denied procedural fairness when the Tribunal hearing was conducted “in this stressful fashion.”
In regard to the Tribunal’s questioning of him, the applicant asserts that:
the Tribunal adopted a line of questioning designed to establish the harm from the perspective of the applicant perspective asking why would he harmed rather than addressing as to the motive.
It is difficult to discern precisely what the applicant is asserting in this regard. I note at the outset that the applicant has not sought to put the transcript of the Tribunal hearing before the Court from which it would have been in a better position to assess these matters.
The Court is thus reliant on the face of the Tribunal decision record which provides a summary of the substance of the exchange of questions and answers between the Tribunal and the applicant. The applicant, however, has not indicated what questions asked of him were repetitive; or caused him to become stressed, nervous, and confused; or which were “irrelevant and had no relationship with the main issues”; or which “asked why would he be harmed rather than addressing as to the motive.”
It is well-settled that the Tribunal is entitled to control the direction of the hearing, including by asking questions in order to satisfy itself of the merits of the application: NADH v Minister for Immigration [2004] FCAFC 328 at [124]-[125]. Also, the Tribunal does not have to accept uncritically any claims made by the applicant: Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451, 124 ALR 265 at 278; Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at 76.
A Tribunal is entitled to question an applicant on matters raised by him. Repeated questioning, especially in the particular context of this case, even with some degree of persistence does not in itself amount to procedural unfairness. The putting of questions to an applicant which are not unduly repetitive or oppressive and which otherwise do not amount to undue harassment or intimidation or where the applicant is not overborne, do not constitute procedural unfairness or bad faith on the part of the Tribunal. As relevantly observed by the High Court in Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [30]-[31]:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view.
I thus accept the submission by the first respondent that:
this is perfectly consistent with the Tribunal's inquisitorial function. It is for the applicant to satisfy the Tribunal that he does in fact have a well-founded fear of persecution within the meaning of the Act and the convention and the Tribunal is entitled to test the applicant's claims (transcript p 8).
Furthermore, I do not detect from the decision record that the Tribunal asked the applicant any questions which had “no relationship with the issues in the application”. Indeed, the summary of the exchanges between the Tribunal and the applicant demonstrates that the matters put to the applicant went to the determinative issues in this case, including, his homosexual relationships in India, his claimed harm and beatings from such practice, his delay in coming to Australia, and his interest in pursuing his homosexuality in Australia (and see under amended ground 3 below: Whether breach of s.425 of the Act).
Nor do I detect from the Tribunal decision record that there was any unfairness in the Tribunal asking the applicant “many question on private matters”, (as is suggested by the applicant under ground 3 below), where there is nothing to demonstrate that the Tribunal either dwelt unduly on these matters or that it was not mindful of the sensitive and stressful nature of an applicant making such claims in a Tribunal setting. Indeed, the Tribunal early in its Findings and Reasons, specifically pointed to the need for particular care in assessing sensitive claims involving sexual orientation:
I accept that there is a particular need for care is assessing claims relating to an applicant’s sexual orientation. Such claims are easy to assert but may pose particular difficulties for applicants to substantiate. They are by their nature difficult to evaluate, involving essentially private issues of self-identity, sexual conduct and strong emotional issues. Social, cultural and religious attitudes towards sexuality in an applicant’s society may exacerbate the applicant’s difficulties in explaining them. Even in the relatively informal setting of a Tribunal hearing applicants may be inhibited by feelings of embarrassment or shame from articulating the details of their sexuality, difficulties which may be compounded by the presence of an interpreter.
However, even giving full weight to these considerations I am not satisfied that the Applicant’s evidence at the hearing provides any indication that he is homosexual in his sexual orientation as he claims. His responses to questions on this subject were notably vague and uninformative and there was no indication that they were based in any genuine, first-hand knowledge, experience or emotions (CB 81).
I also do not detect, (as is suggested by the applicant under amended ground 2 below), any indication that the Tribunal deliberately used the hearing to conduct a quasi-police interrogation or that its questioning was unduly repetitive or was designed in any way to manipulate, entrap, harass, destabilise or confuse the applicant.
I am satisfied that there is nothing disclosed on the face of the decision record concerning the manner and form of the questions asked of the applicant from which “a hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the applicant was in any way intimidated or overborne by the approach adopted by the Tribunal and from which an inference might otherwise have been available that the Tribunal did not bring an impartial mind to the task of the decision making process: ex parte H & Anor (at [28]), or that it acted in bad faith.
Quality and accuracy of interpreting
The applicant asserts that “the interpreter advised him to speak in short” and that in conjunction with the manner and repeated nature of the questioning, (discussed above), he was denied procedural fairness when the hearing was conducted “in this stressful fashion.”
Again, as stated above, the applicant has not provided the Court with the transcript of the Tribunal hearing. In these circumstances the only evidence before the Court of what transpired at the hearing is in the Tribunal's summary of the hearing (CB 74-79).
There is no reference in the Tribunal decision record to any communication difficulties experienced by the applicant or that the quality of the translation was deficient, or that there were any concerns raised by the applicant on this basis.
I also note that, following the applicant’s request, the applicant was provided with CDs of the Tribunal hearing on 19 October 2007 (CB 63). The first respondent has indicated that these CDs were also provided to the panel adviser (transcript, p 9). The applicant did not seek to raise any complaint or concerns arising from those CDs with the Tribunal, nor did he reply to the Tribunal’s s.424A letter to him of 17 October 2007, which invited a response from him by 9 November 2007.
In these circumstances, the applicant has provided no evidence that the interpretation before the Tribunal was so incompetent that he was prevented from giving meaningful evidence: Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 at [38]. I thus detect no procedural unfairness on this basis.
Consideration of country information (grounds 1 and 3)
The applicant asserts that
The Tribunal … made opinion that the applicant fabricated his evidence to gain protection visa without having any correct information about the applicant and his country’s the legal system and their application of system in the practical sense.
The applicant further asserts (under ground 3 below) that:
The Tribunal made jurisdictional error when it made decision totally based on independent information, which totally collected from Internet for the purpose to reject the claim for the protection visa on this ground.
It is instructive to note in this regard, that the delegate referred to independent country information in its decision in rejecting the applicant’s protection visa application (CB 30-31, 37- 40).
The Tribunal, however, made no reference to such independent country information in its determination. Such information was simply irrelevant, where the Tribunal rejected the application because it did not believe the applicant's claims that he was a homosexual:
His evidence in this area [of his conduct in Australia] casts further doubt over his claims concerning his homosexuality.
Having considered these claims [regarding alleged harm suffered in India] I am not satisfied that they are anything more than an inventions adopted by the Applicant at the interview and the hearing.
I am not satisfied that if he had been subjected to regular beatings in the years immediately preceding his departure from India, as he claims, and had been forced to leave in order to find safety, he would have delayed his departure for over three years after he obtained his passport in October 2003.
Given theses doubts, inconsistencies and conspicuous vagueness, together with the fact that none of the Applicant’s claims concerning beatings by the police or unidentified members of the public is substantiated from any external source, I am not satisfied as to the truth of his claims to have suffered harm in India (CB 82-83).
I consider that these findings were open to the Tribunal on the evidence before it.
I therefore accept the submission by the first respondent that:
the Tribunal based its findings on its subjective analysis of the applicant's evidence given at the hearing and on some inconsistencies between that evidence and his evidence given to the Department, there is simply no foundation for the applicant's complaint that the Tribunal's decision of affected by an error relating to the Country Information before it or its understanding of the Indian legal system (transcript, p 11).
Merely because the applicant disagrees with the Tribunal’s adverse finding of credibility does not amount to an error of law. The Tribunal’s finding in this regard is a finding of fact par excellence and not open to review by this Court: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). It is not the function of this Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]). Moreover, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137].
Accordingly, for the reasons stated above, Ground 1 of the amended application is rejected.
Ground 2 of the amended application
Ground 2 of the amended application states that:
2.The tribunal made a jurisdictional error when it failed to identify the category of the social group from which the applicant comes from. The application had no access to know which documents were used to make the decision.
PARTICULUARS
The applicant claims that in his protection visa application he wrote that he is a gay person and there is state sponsored persecution is going on in India on the gays people. The gay people are regarded by the society as an abnormal man and had been hated for what he was. The applicant said in his application that in his Indian society this practice of homosexuality is not permitted at all and he was looked at as if he was doing something very low.
At the time of hearing many times the Tribunal member repeated the same questions it like a police interrogation. The applicant reiterated that he was afraid of his family, the public and the police. The applicant said that there is no safety of gays in India. Nobody treated them well where as in Australia they could find work and safety.
The applicant claims that the Tribunal failed to the issues related with the gay population in India. He is victim of discreet. Because of feeling of discreet he cannot live in that society. Wherever he goes everybody hates hi and looks to him as very low type of people.
Failure to identify social group
The applicant asserts that the Tribunal made a jurisdictional error when it failed to identify the category of the social group from which the applicant comes.
I do not accept this assertion. The Tribunal carefully considered the applicant’s claims as a homosexual in the cultural context of India. It asked the applicant many questions about his experiences as an alleged homosexual and how he personally, and gays as a group, were treated in Indian society. For instance, the Tribunal referred to the applicant’s evidence that:
… he said he had a problem as he was gay. In his society this was not permitted at all and he was looked at as if he was doing something very low (CB 74);
Whatever he did as a gay his family and his social group disliked him – this was why he had a problem … he said he was afraid of his family, the public and the police (CB 75);
He said there was no safety for gays in India. Nobody treated them well (CB 76).
At the Tribunal hearing the applicant based his claim for a protection visa solely on the basis of his fear of persecution for his alleged homosexuality in the Indian community:
He confirmed that the reason he would be harmed was because he was gay. Asked if there was any other reason why anyone would wish to harm him in India he said this was the only reason (CB 75)
I accept the submission by the first respondent that:
Nowhere in the evidence, in the Court Book, is there any indication that the applicant advanced another basis for fearing harm in India (transcript, p 12).
In its Findings and Reasons, the Tribunal specifically identified and directly addressed this matter:
The Applicant’s claimed fear of harm rests entirely on his claim that he is gay and that he has had a number of homosexual relationships in India, the latest and most significant of which was with a person from his village named Naresh. He claims he has suffered beatings from members of the public and the police when detected in sexual encounters, and that his father dislikes him and has disowned him because of his sexuality (CB 81).
The Tribunal then closely considered all the evidence concerning the applicant’s alleged homosexually before reaching its conclusion adverse to his claims in this regard (CB 81-82).
Procedural fairness in the conduct of the Tribunal hearing
Access to documents
The applicant asserts that he had “no access to know which documents were used to make the decision.” So far as is relevant to this issue, I also rely on my reasoning under grounds 1 and 3 in the context of matters which touch upon issues of procedural fairness.
The summary of the Claims and Evidence in the Tribunal determination indicates that the evidence considered by the Tribunal comprised the applicant’s written claims about his homosexuality in his application for a protection visa, his Departmental interview, his claims and evidence at the Tribunal hearing and the matters concerning the applicant’s evidence which were outlined in the s.424A letter (CB 73- 80).
I accept the submission by the first respondent that:
The only evidence before the Tribunal was that contained in the protection visa application file and the Tribunal file and as I earlier submitted the sole basis for the Tribunal's decision was its disbelief of his claims and that arose out of his evidence given to the Tribunal and the Department. There were no other documents before the Tribunal (transcript, p 13).
I thus detect no procedural unfairness on this basis.
Questioning by the Tribunal
The applicants assertion that at the Tribunal hearing “many times the Tribunal member repeated the same questions it like a police interrogation” is dealt with under amended ground 1 above.
Ground 3 of the amended application
Ground 3 of the amended application states that:
3.The Tribunal made jurisdictional error when it made decision totally based on independent information, which totally collected from Internet for the purpose to reject the claim for the protection visa on this ground.
PARTICULARS: The applicant claims that the applicant gave maximum information at the time of Departmental interview. He was unable to provide written and photographic evidence of homosexual relationship within a very short time. It is very difficult to get any reliable evidence in support of his claim that he is homosexual person or bisexual person.
The applicant claims that during the interview Tribunal asked many irrelevant and private matters questions. The applicant claims that by doing so the Tribunal did not follow laws and requirements to section 424 A of the Migrations Act.
The applicant claims hat he was denied procedural fairness and natural justice.
Country information
The applicant’s assertion that he Tribunal “made jurisdictional error when it made decision totally based on independent information, which totally collected from Internet for the purpose to reject the claim for the protection visa on this ground” is dealt with under ground 1 of the amended application above.
Whether denial of procedural fairness and natural justice
The applicant makes the general assertion that he was “denied procedural fairness and natural justice”. He also asserts that s.424A of the Act was breached, and that he was not given sufficient time to present supporting material before the Tribunal. So far as is relevant, I also rely on my reasoning under amended grounds 1 and 2 in those matters that touch upon issues of procedural fairness.
The applicant is not entitled to common law natural justice: s.422B of the Act. Rather, the Tribunal must observe the statutory expression of natural justice in Part 7, Division 4 of the Act: (Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61 at [66]; SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62 at [8].
Whether breach of s.425 of the Act
Section 425 of the Act requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the delegate's decision.
By letter dated 19 September 2007, the Tribunal invited the applicant to a hearing scheduled on 16 October 2007. I am satisfied that this letter was sent in accordance with the notification provisions contained in the Act and the Regulations. The applicant attended the hearing and gave evidence.
A fair reading of the Tribunal decision demonstrates that the Tribunal complied with its statutory obligations under s.425(1) by giving the applicant the opportunity at the hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. In this regard, the Tribunal identified for the applicant the determinative or critical issues upon which the decision was likely to turn, and gave the applicant sufficient opportunity to give evidence and make submissions concerning those determinative issues before it reached its conclusions: SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 at [33]–[48] (and see further under amended ground 1 above).
Beyond this, s.425 does not require the Tribunal at the hearing to give an applicant a running commentary upon what it thinks about the evidence that is given or otherwise disclose its mental processes and subjective appraisals, including its disbelief of an applicant’s claims and his lack of credibility. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. As observed by the High Court in SZBEL at [47]-[48] in this regard:
It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor …
…as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry]:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. if this were a rule of natural justice only the most talkative of judges would satisfy it …”
Whether breach of s.424A of the Act
Subsequent to the hearing, on 17 October 2007, the Tribunal sent a letter to the applicant, pursuant to s.424A of the Act, inviting his comment or response on particular claims and evidence he had made at the hearing and which would, subject to such comment or response, be the reason or part of the reason for the Tribunal affirming the decision under review (CB 61-62).
The letter also (in bold emphasis) advised the applicant that:
If the Tribunal does not receive any comments within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your views on the information (CB 62).
The applicant did not reply to the s.424A letter. In these circumstances the Tribunal was entitled to proceed without taking any further action to obtain the views of the applicant: s.424C(2) of the Act.
In any event, s.424A(3) provides certain statutory exceptions to the Tribunal’s obligation under s.424A, including “information that the applicant gave for the purpose of the application for review” at the Tribunal hearing: ss.(3)(b); and information “that the applicant gave during the process that led to the decision that is under review [namely to the delegate] other than such information that was provided orally by the applicant to the Department”: ss.(3)(ba).
It is also clear that a proper construction of the word “information” in the context of s.424A and hence what information must be given to an applicant for comment, does not extend to the Tribunal’s subjective thought processes or appraisals of the evidence before it, including its disbelief of an applicant’s evidence. As observed by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 at [18]:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
Equally, in the present case, the lack of credibility of the applicant’s claims was at the forefront of the Tribunal’s thought processes.
Likewise, in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27], the Full Federal Court commented that:
The proposition than an inference or deduction based upon two facts can constitute "information" for the purposes of sub 424A(1) does not fit easily into the structure of s.424A as a whole. In SZBYR the High Court stressed the distinction between the concept of "information" and the reasoning process leading to affirmation of the decision under review… The drawing of inferences and the assessment of their relevance are more appropriately described as part of the reasoning process than as information for the purposes of sub 424A(1).
I consider therefore that the Tribunal was not obliged to notify the applicant pursuant to s.424A(1) of its concerns about his credibility.
As further observed in SZGIY at [30], merely because the Tribunal provided a s.424A letter to the applicant does not create any inference that the material contained therein constitutes “information” for the purposes of s.424A(1):
The appellant submitted that if the Tribunal felt it necessary to invite an explanation, then s.424A(1) must apply. That submission has no merit. The Tribunal may, out of an abundance of caution or concern for fairness, put a particular line of reasoning to an applicant in circumstances where s.424A has no application.
The procedural fairness requirements in Part 7 Division 4 deal only with the process of decision-making, not the merits of the decision. As relevantly stated in SZBEL at [25]:
what is required by procedural fairness is a fair hearing, not a fair outcome….. It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
As stated above, (under amended ground 1), it is not the function of this Court to engage in impermissible merits review.
Accordingly, I detect no breach of s.425(1) or s.424A of the Act in this case. I am satisfied that the applicant was accorded procedural fairness by the Tribunal in accordance with the statutory framework of the natural justice hearing rule under the Act.
Overall, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of, and set out a detailed and closely reasoned analysis of, the applicant's claims regarding his homosexuality; explored those claims with him at the hearing; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing; provided him with a further opportunity after the hearing to respond to the matters raised in the s. 424A letter; closely noted the applicant's responses and made findings based on all the evidence and material before it.
I consider that the Tribunal’s findings of fact, in particular as to the applicant’s adverse credibility, were open to it on the evidence and material before it; that the Tribunal provided well-articulated and detailed reasons for rejecting the applicant’s claims as to his homosexuality; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
Difficulty in obtaining additional evidence
The applicant asserts that he was unable “to provide written and photographic evidence of homosexual relationship within a very short time. It is very difficult to get any reliable evidence in support of his claim that he is homosexual person or bisexual person.”
At the Tribunal hearing, the Tribunal advised the applicant that he was entitled to seek additional time to comment on the concerns raised by it in regard to the evidence in his case. The applicant however did not avail himself of that opportunity. As stated by the Tribunal (at CB 79):
Asked if there was anything he wished to add the applicant said there was not.
I explained to the applicant that, on the basis of what he had said I had difficulty in believing that he had ever been harmed by members of the public or the police for being gay or that he was, in fact gay. I explained that these things were important for the review of his case because they could lead to a conclusion that if he returned to India he would not be at risk of harm for being gay or for any other reason. This could lead to a conclusion that he was not a refugee and could lead to a decision to affirm the decision not to grant him a protection visa. The Applicant confirmed that he understood this information and its importance for his case. I explained that he was entitled to seek additional time to comment on this information or respond to it and asked if he needed more time to do so. He said he did not.
Furthermore, the applicant was given the opportunity to respond to the Tribunal’s concerns stated in the s.424A letter. He chose not to do so. More importantly in the present context, he did not seek an extension of time in which to address those concerns, even though the s.424A letter specifically addressed this issue, as follows:
If you cannot provide your written comments/response by 9 November 2007, you may ask the Tribunal in writing for an extension of time in which to provide the comments/response. If you make such a request, it must be received by the Tribunal before 9 November 2007 and the request must state the reason why the extension of time is required. The Tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted [emphasis added] (CB 62).
In these circumstances it is difficult to see how the applicant can now say that he was not given enough time to obtain supporting material. Also, at no time between the conclusion of the Tribunal hearing and the handing down of the decision, a period of close to 2 months, did the applicant draw any concerns of this nature to the attention of the Tribunal.
In any event, it is well settled that although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of an individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the decision-maker to establish the relevant facts.
The Tribunal is not required to make the applicant’s case for him: SZBEL at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As also observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
I thus detect no procedural unfairness on this basis.
Accordingly, for the reasons stated above, the grounds of the amended application are rejected.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application and the amended application are dismissed.
I certify that the preceding one-hundred (100) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 20 June 2008
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