SZLVJ v Minister for Immigration
[2008] FMCA 425
•26 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLVJ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 425 |
| MIGRATION – RRT decision – Indian applicant claiming persecution as homosexual – disbelieved by Tribunal – no arguable case for judicial review – application dismissed at show‑cause hearing. |
| Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), s.91R(3) |
| Applicant: | SZLVJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3981 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 26 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms K Hooper |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3981 of 2007
| SZLVJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant came to Australia in December 2006. With the assistance of a migration agent, Mr Solaiman, he lodged an application for a protection visa on 24 January 2007. The application contained a short statement explaining why the applicant claimed protection in Australia against return to India. It said:
I left the country to avoid persecution by the society and the authority for being a Homosexual. … Because Indian society doesn’t accept homosexuality as normal behaviour and persecute homosexuals. Police persecutes homosexuals as well. I became a victim of those persecution. It is a punishable offence to be a homosexual in India and maximum penalty is imprisonment for life.
Although Mr Solaiman presented extensive general submissions concerning the situation of homosexuals in India generally, no details whatsoever were presented to the Department concerning the applicant’s claimed history. A delegate refused the application on 18 April 2007.
The applicant’s claims were then presented to the Refugee Review Tribunal in proceedings which were protracted. They extended over three hearings, with extensive correspondence between the Tribunal and the applicant’s agent. In the course of the correspondence, the applicant presented photographs showing him engaged in sexual activity with a European person, and also with an Indian person with whom he claimed to have had a homosexual relationship in India and in Australia. Two reports were also presented to the Tribunal: one from a sociologist who did not consider the applicant’s own claims, and the other from a forensic psychologist who interviewed the applicant briefly.
As well as raising a number of concerns with the applicant in the course of its three hearings, the Tribunal sent four letters to the applicant putting particular concerns, which ultimately became important reasons in the Tribunal’s decision.
According to its description of the hearing, it also drew to the applicant’s attention the provisions of s.91R(3) of the Migration Act 1958 (Cth), which required it to disregard any conduct engaged in by a refugee claimant in Australia, unless the Tribunal was satisfied that the conduct was engaged in “otherwise than for the purpose of strengthening the person’s claim to be a refugee”. The significance of this provision in relation to the applicant’s claimed activities in Australia was also expressly put to the applicant in a letter, and the applicant responded in a written submission.
In a lengthy statement of reasons handed down on 12 October 2007, the Tribunal affirmed the delegate’s decision. It recited the whole of the proceedings before it, and then explained its reasons for arriving at conclusions that the applicant “is not a homosexual and that he will not be so perceived if he returns to India”.
The Tribunal identified several reasons for finding that the applicant had “given untruthful basic information about his language skills, past employment and his life in India generally”.
It then assessed the photographic evidence presented to it, noting clearly inconsistent statements made by the applicant about how the photographs had come about. Ultimately the applicant had admitted to the forensic psychiatrist that the first group of photographs showed him engaging in sex with a prostitute, and that these had been obtained for “the purposes of obtaining evidence for this application, on Mr Solaiman’s recommendation”. The Tribunal found that the sole purpose that the applicant had engaged in sexual activity on that occasion was for the purpose of having it photographed to assist his claim to be a refugee. It therefore applied s.91R(3), and was required to disregard it. It arrived at a similar conclusion in relation to the second set of photographs, showing the applicant having sex with an Indian friend.
The Tribunal then explained its reasons for discounting, or not being persuaded by the contents of the two expert reports.
It then assessed the applicant’s relationship with his Indian friend, in the light of their travel history and their evidence to the Tribunal. It said that this was “incomplete and sometimes inconsistent … with respect to important aspects of the claimed relationship”. The Tribunal arrived at the conclusion that the knowledge of the applicant and his friend of each other was “limited” in relation to some significant aspects, and it concluded that they were “close friends rather than long‑term partners”. It concluded that in the light of its particular concerns about their evidence, “and the applicant’s poor credibility generally”, that it did not accept that the applicant and his friend were in a homosexual relationship, and did not accept that their relationship provided evidence of the applicant’s claimed homosexuality.
The Tribunal also referred to general aspects of the applicant’s evidence, in which he had been questioned in an attempt to assess whether he had led a homosexual life in India. It concluded:
The Tribunal has considered the applicant’s claims individually and cumulatively. It finds that his knowledge, claimed experiences and interests, in India and Australia, are not those of a person who is a homosexual or will be so perceived. The Tribunal also does not accept that the applicant and Mr P have a genuine relationship. The Tribunal finds that the applicant has given false information regarding other aspects of his life, and that he is not a credible witness. It concludes that he has fabricated the claim to be a homosexual for the purposes of his refugee application, and that it has no foundation in fact.
In view of this finding, the Tribunal rejected the applicant’s claimed past history of harm arising from his being perceived as a homosexual. It found no other reason to support a fear of persecution for any reason if the applicant returned to India. It concluded that it was not satisfied that the applicant had a well‑founded fear of Convention‑related persecution now or in the reasonably foreseeable future if he returned to India.
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration by the Tribunal. His application has been set down for hearing today, to consider whether it raises an arguable case for the making of these orders. The applicant has been given an opportunity to amend his application and to present further evidence about the proceedings in the Tribunal, after receiving a bundle of relevant documents and advice from a member of the Court’s free legal panel. He has, however, not filed any amended application or evidence, nor any written submissions.
His application contains only the following grounds:
1.The RRT denied proper application of law to the applicant.
2.The RRT denied natural justice to the applicant.
3.The RRT did not follow due procedure.
4.RRT misinterpreted the meaning of law.
These grounds are entirely unexplained in the application or the supporting affidavit. The applicant today had nothing to say to me, to give them any substance. Plainly, because of their generality, they do not present an arguable case for the granting of the relief claimed.
With the assistance of the Minister’s legal representative, I have for myself carefully considered all of the material before me to try to identify an argument which could be made on behalf of the applicant. However, I am unable to identify any such argument.
In my opinion, the Tribunal’s reasons show a plainly appropriate knowledge of the relevant law, including s.91R(3). The applicant has been given procedural fairness according with common law requirements, as well as the procedural requirements of the Migration Act. The applicant’s claims, and all his evidence, have been carefully assessed by the Tribunal before it arrived at a decision. In my opinion, that decision was clearly open to it on the material which was before it.
I am not satisfied that the application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r.44.12(1)(a).
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 3 April 2008
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