SZMBB & Anor v Minister for Immigration & Anor
[2008] FMCA 761
•20 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMBB & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 761 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visas – citizens of India claiming fear of persecution because of the husband’s homosexuality – wife a Part C applicant with her own claim – credibility – where Tribunal disregarded the first applicant’s conduct in placing an advertisement in a newspaper seeking clients as a sex worker and posing for photographs with a male sex worker under Migration Act 1958 (Cth) s 91R(3) – whether the Tribunal breached the rules of natural justice and procedural fairness – whether the Tribunal applied an incorrect definition of homosexuality – whether Tribunal acted in bad faith – no evidence of bias – merits review. PRACTICE & PROCEDURE – Application for extension of time to make application for review of the Tribunal decision. |
| Migration Act 1958 (Cth), ss.91R, 91X, 422B, 424A, 424C, 425, 425A, 441A, 474, 477 |
| Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 referred to SBBS v Minister for Immigration and Citizenship (2002) 194 ALR 749; [2002] FCAFC 361 cited Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 followed SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 followed Re Minister for Immigration and Multicultural Affairs (2000) 168 ALR 407; [2000] HCA 1 followed |
| First Applicant: | SZMBB |
| Second Applicant: | SZMBC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 629 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 May 2008 |
| Date of Last Submission: | 29 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2008 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondents: | Ms McWilliam |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicants are to pay the first respondent’s costs fixed in the sum of $5,000.00.
The Registrar of the Federal Magistrates Court is requested to forward a copy of this decision to the Migration Agents Registration Authority.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 629 of 2008
| SZMBB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicants, who are husband and wife, are citizens of India. They ask the Court to issue writs to set aside a decision of the Refugee Review Tribunal made on 14th August 2007. The Tribunal affirmed the decisions of a delegate of the Minister not to grant the applicants protection visas.
In their Amended Application, which they filed on 14th May 2008, the applicants ask the court to issue the following writs:
(1)A writ of certiorari quashing the Tribunal’s decision;
(2)A writ of prohibition or an injunction to restrain the first respondent, the Minister for Immigration and Citizenship, from acting upon the Tribunal’s decision;
(3)A writ of mandamus remitting the applicants’ applications for protection visas to the Tribunal for reconsideration and re-determination according to law.
The applicants also seek an order for costs, although they have not been legally represented during these proceedings.
The Minister has filed a Response opposing the making of the orders sought by the applicants.
Background
The applicants arrived in Australia on 28th October 2006. They applied to the Department of Immigration and Citizenship for protection (Class XA) visas on 12th December 2006. The first applicant claimed a fear of persecution in India on the ground that he is a homosexual man who was bullied, tormented and abused by the police in India. He claimed to have been forced to marry by pressure from his family, his neighbours and the police. He claimed that he could not divorce his wife, and he and his wife now have a child. He stated that he decided to leave “a country in which the society does not accept me as human, persecutes me and the state does not offer any kind of protection”[1].
[1] Court Book at 18
The second applicant, the wife of the first applicant, filed her own application for a Protection (Class XA) visa as a Part C applicant.
She claimed that her husband was forced to marry her in 1998. As the wife of a man who prefers to have sex with other men she claimed that she has been “a subject of bullying, sexual assaults and harassments”[2]. She claimed that she would not be able to divorce her husband.
[2] Court Book at 32
The Minister’s delegate interviewed both applicants. The delegate noted that the first applicant wished to rely on his gender combined with his sexual orientation as being the elements of the particular social group of which he claimed to be a member. The delegate was satisfied that the Indian community would recognise the applicant as being a member of a group set apart from itself[3] and was satisfied that the first applicant claimed a fear of persecution for reasons relating to his membership of a particular social group. The delegate found that the first applicant feared persecution for a Convention reason.
[3] Court Book at 70
The delegate accepted that the first applicant might face some form of discrimination in India, but was satisfied that it would be reasonable for him to relocate within India, stating:
Nevertheless, I consider that relocation within India remains a reasonable option for the applicant, based upon the country information noted above in relation to the major cities outside of Gujarat state. The applicant would be able to relocate to Mumbai in Maharashtra state, and which has a population of more than 16 million …Mumbai is described as the gay capital of India, and has many support organisations that are easily accessible in that city.[4]
[4] Court Book at 74
The delegate refused to grant the first applicant a Protection (Class XA) visa on 15th February 2007.
The same delegate considered the second applicant’s application for a protection visa. The delegate was not satisfied that the Indian community would recognise and has recognised the second applicant as being a member of a particular social group, such that her particular marital circumstances would give rise to her being subject to persecutory treatment.
The delegate was not satisfied that the second applicant claimed a fear of persecution upon return to India for reasons relating to membership of a particular social group, described as “wives of practising homosexuals in India”. The delegate was also not satisfied that the verbal harassment that the second applicant had claimed was for reasons of her membership of a particular social group.
The delegate stated:
I find that the Convention ground of particular social group is therefore not the essential and significant reason for the harm feared as outlined in section 91R of the Migration Act. I therefore find that the applicant fears persecution for a Convention reason[5].
[5] Court Book at 84
However, the delegate went on to find that the second applicant’s responses to the delegate’s questions showed that the incidents she had faced in India were limited to occasions of verbal harassment which had occurred only occasionally. The delegate found that the second applicant’s claims of mistreatment did not constitute serious harm and were therefore not persecution as outlined in s 91R of the Act.
The delegate’s finding was:
I find that the harm feared does not involve serious harm and systematic and discriminatory conduct as outlined in section 91R of the Migration Act[6].
[6] Court Book at 85
The delegate refused to grant the second applicant a Protection (Class XA) visa on 15th February 2007.
Application for Review by the Refugee Review Tribunal
The applicants applied to the Refugee Review Tribunal for a review of the delegate’s decisions on 24th February 2007. Their migration agent, Mr Solaimon, wrote to the Tribunal on 12th March 2007, enclosing a copy of a newspaper advertisement showing that the first applicant was working as a gay prostitute.
The Tribunal wrote to the applicants’ migration agent on 3rd April 2007, inviting the applicants to attend a hearing to give oral evidence and present arguments on 24th May 2007. The agent confirmed that the first applicant would attend the hearing.
On the day of the Tribunal hearing the applicants’ agent provided to the Tribunal a lengthy written submission concerning the first applicant’s situation and that of gays and lesbians in India generally. A copy of this submission can be found at pages 103 to 129 of the Court Book.
The hearing did not proceed on 24th May. The hearing was scheduled to commence at 12 noon, but the first applicant arrived late. The hearing was postponed to 1st June 2007. Both applicants and their migration agent attended. They provided copies of their Indian passports to the Tribunal. The hearing was adjourned until 5th June 2007.
The applicants; migration agent asked for a postponement until after
8th June 2007, as he would be out of the country until 6th June.
The Tribunal rescheduled the hearing to 12th June 2007.
Both applicants attended the hearing on 12th June 2007 and gave evidence.
The applicants provided to the Tribunal some photographs of the first applicant with a man named Anthony, who gave him $300.00 to have sex with another person. He then said that Anthony later had sex with him and paid him $300.00.
The Tribunal Member put to the first applicant a number of questions about the photographs with Anthony:
When it was put to him there were a number of other cases before the Tribunal where other photos included what appeared to be the same bed, the same television, which lead (sic) the Tribunal to believe it was the same room and the same cap and tan lines which lead (sic) the Tribunal to believe it was the same partner, and the other cases had the same adviser, the applicant stated the conclusion was 100% true. The applicant stated Anthony was a professional person who paid to perform sex. He stated Anthony allowed the photos because he was a professional. When it was put to the applicant the Tribunal may find he had the same partner and it was the same room and the same adviser as in two other cases before the Tribunal, even though the applicant had stated the adviser had nothing to do with his meeting Tony, the applicant stated that maybe the lawyer put the wrong case or maybe the applicant was lying. He then stated Anthony was a professional, many people must go to him. He did not know how he was involved in the other cases. He also stated that he had the mobile number of other clients[7].
[7] Court Book at 218
The Tribunal wrote separate letters to the applicants on 19th June 2007. Each letter was headed “Invitation to comment on information” and told the applicants that the Tribunal had information that would, subject to any comments they made, be the reason, or part of the reason, for deciding that the applicants were not entitled to protection visas.
The letter to the second applicant set out information relating to her and also relating to her husband. The letter asked the second applicant about her own situation, where she claimed to have lived and when she claimed to have been harassed as a result of her husband’s sexuality.
Some of the information concerned the first applicant and was rather confusingly headed. I have deleted the name of the first applicant in order to comply with the requirements of s 91X of the Migration Act 1958 (Cth). One heading was:
When (the first applicant) parents knew about your sexuality
The paragraph goes on to refer to the first applicant’s claims about his sexuality. The heading is confusing because the second applicant has never made any claims to be other than heterosexual.
The following heading was:
When your wife first knew about (the first applicant)
Needless to say, the second applicant has never claimed to have a wife. She is the wife of the first applicant. The paragraph put to the second applicant inconsistencies between the two applicants as to when the second applicant came to know that her husband worked as a sex-worker. The letter told the second applicant:
This[8] may lead the Tribunal to conclude your and (the first applicant’s) answers at hearing as to when you knew about (the first applicant’s) situation are inconsistent. This may lead the Tribunal to conclude that you and (the first applicant) are not truthful witnesses.[9]
[8] i.e. the inconsistency
[9] Court Book at 173
The Tribunal’s letter to the first applicant was somewhat longer.
The letter put to the first applicant its concerns about the photographs he had provided, showing him with the man Anthony. In particular, the Tribunal referred to other cases before it with other photos that appeared to have the same bed and the same television, which led the Tribunal to believe they all had the same partner. The Tribunal noted that the other cases had the same adviser.
The letter told the first applicant why it considered the information to be relevant:
This is relevant because the Tribunal may find you have the same room and partner and the same adviser as two other cases before the Tribunal. The Tribunal may also find that Anthony is a professional sex worker who is paid for sex. The Tribunal may find the most plausible explanation as to why three separate cases before the Tribunal have the same room and partner is because in all three cases, the same adviser has arranged for you to go to the same sex worker…
This may lead the Tribunal to conclude that this evidence has been orchestrated for the purposes of this claim. This and a potential finding that you are not homosexual may lead the Tribunal to find that it is not satisfied that you have engaged in the conduct otherwise than for the purpose of strengthening your claim to be a refugee[10].
[10] Court Book at 179 and 223
Each letter invited the applicants to comment on the information by
3rd July 2007. The letters were intended to comply with the requirements of section 424A of the Migration Act 1958. The letter to the first applicant also asked for additional information to be provided:
·Newspaper advertisement indicating you advertised as a sex worker earlier than in February 2007[11].
[11] Court Book at 180
This letter was also intended to comply with s 424 of the Migration Act.
The Tribunal noted on 4th July 2007 that it did not receive any comments in reply from the applicants[12].
[12] Court Book at 184
The Tribunal again wrote to the first applicant’s migration agent, this time on 10th July 2007. The letter, written in terms of s 424A, asked for comments on an inconsistency between the first applicant’s evidence to the Department of Immigration and Citizenship in his interview on
6th February 2007and a statement made in the migrations agent’s written submission to the Tribunal dated 24th May 2007. The Tribunal asked for written comments by 24th July 2007.
The Tribunal noted on 25th July 2007 that it did not receive any reply from the first applicant.
On 2nd August 2007, the Tribunal wrote to the applicants’ migration agent, advising that the Tribunal would hand down its decisions on
14th August 2007.
The applicants’ migration agent forwarded a written submission dated August 7, 2007 to the Tribunal by fax on that date. The submission advised the Tribunal:
We further submit that we contacted Dr Gerard Sullivan, an academic of the University of Sydney and asked for his opinion. Dr Sullivan is a researcher in the University of Sydney. A copy of his home page describing his expertise is attached with this letter. He commented that it would be extremely difficult for someone from India to get involved with same sex intercourse without being a gay because of the existing homophobia in the culture. We would provide a written opinion from Dr Gerard Sullivan very shortly. This will be an error of law in disregarding the cultural influence on the applicant while assessing the photographs. We will also provide a psychiatric assessment on the applicant’s sexual behaviour[13].
[13] Court Book at 192
Later in that same letter, the migration agent went to say:
We would like to inform that the advisor will be out of the country from 7 August 2007 to 20 August 2007. We will perform the psychological test after returning to Australia. We request that no decision is made in this matter until we complete an assessment and provide it to the Tribunal[14].
[14] Court Book at 195
The migration agent sent an email to the Tribunal on 9th August 2007, in which he referred to the case of the first applicant and two other matters. He stated:
I would like to be contacted by email on these three matters till 22 August 2007. On 7 August 2007, before I departed Australia, I sent submissions on these matters. I would like to have the response of those submissions via email[15].
[15] Court Book at 201
On 13th August 2007 the Tribunal Member considered the applicants’ submission of 7th August 2007 and decided to recall her decision record. The Member stated:
I have decided to recall my decision record.
A new decision record will be provided prior to the handing down date[16]
[16] Tribunal form entitled Material Received After Signing of Decision Prior to Handing Down, Court Book at 204
The Tribunal wrote to the applicants’ migration agent that day, advising that the Tribunal had received the letter dated 7 August 2007 and the Member reviewing the case had considered the material. The letter confirmed that the Tribunal decision would be handed down on
14th August 2007.
The Refugee Review Tribunal Decision
The Tribunal signed the decision on 13th August 2007 and handed the decision down on 14th August. The Tribunal affirmed the decision not to grant the applicants a Protection (Class XA) visa. A copy of the Tribunal Decision Record can be found in the Court Book at pages 210 to 230.
The Tribunal received a telephone call from the applicants’ migration agent in the afternoon of 14th August, after the decision had been handed down. The agent then forwarded an email to the Tribunal, which appears to have been sent at 3:57 pm on that day.
The email said, inter alia:
I knew that the Tribunal waited for a response of (sic) the s424A letters sent to the applicant through me. I knew that there were several issues that the Tribunal raised in those letters[17]
[17] Court Book at 233
The email went on to refer to the agent’s attempts to make arrangements with Dr Gerard Sullivan and others and complained that the Tribunal had not responded to his requests to explain that he was going to seek professional opinions about the applicant’s case.
The agent then said:
I request that the decision handed down today be cancelled and an opportunity to provide for those (sic) information to be given. Please note that during the first hearing, I asked the Tribunal member that if I could interrupt in case there was any confusion or explanation difficulties or any issues that were important to make the claims, the Member clearly said “NO”. I then had to leave the hearing room since it was my understanding that if I could not talk, there was no point in me staying in the hearing room.
I will be back to Australia no later than 22 August 2007 and will make appropriate arrangements so that the client can be assessed by clinical psychologists as soon as possible. It should be noted that asylum seekers often are not able to make claims coherently and cohesively due to torture and trauma. In this matter, the client claimed to have suffered torture.
I also draw your attention to my letter of 7 August 2007, which I wrote before I left Australia. In that letter I requested that the handing down be cancelled and these information be allowed to be provided. No response to that letter was made either.
I believe that you will let the presiding member of this email and take necessary action to this matter[18].
[18] Court Book at 234
The Court Book contains a Memorandum to the District Registrar of the Tribunal referring to the agent’s email. The Memorandum refers to the email containing a submission which the migration agent had sent from Colombia and was received “at 3.50 pm today”:
The submission was referred to the Presiding Member who advised that she is ‘functus officio’ in relation to this matter[19].
[19] Court Book at 235
The District Registrar wrote to the migration agent on 28th August 2007, referring to the email submission received at the tribunal at 3.57 pm on 14th August 2007. The letter advised the agent:
I advise that a decision in your client’s case was handed down at 9.00 am on 14 August 2007 and a copy of the decision was sent to you, by registered post, on that day.
As the Tribunal has made its decision, it no longer has any power to consider this case[20].
[20] Court Book at 240
The Tribunal’s Findings and Reasons
The Tribunal’s Findings and Reasons are set out at pages 226 to 230 of the Court Book. The Tribunal accepted that the applicants were Indian nationals. The Tribunal noted that the first applicant’s claim that he feared harm in India because of his homosexuality. The Tribunal noted the second applicant’s claim that she was forced to marry the first applicant and this had made her the subject of bullying, sexual assaults and harassments.
The Tribunal had this to say of the applicants:
At hearing, the parties did not present as credible. The Tribunal is satisfied the applicant and applicant wife are not witnesses of truth and to the extent that the Tribunal has not expressly done so, it rejects their material claims[21].
[21] Court Book at 226
The Tribunal gave these reasons for rejecting the applicants as credible witnesses:
·The applicants gave inconsistent evidence at the tribunal hearing about where they were living, especially at the time of their son’s birth[22];
·The first applicant gave inconsistent evidence to the Tribunal and to the Department of Immigration and Citizenship[23];
·The second applicant gave inconsistent answers to the Tribunal at the hearing and to the Department about when she was first sexually harassed[24];
·The first applicant’s answer to the Tribunal at the hearing about when his parents found out about his sexuality were inconsistent with the answer he gave to the Department[25]; and
·The applicants gave inconsistent answers at the hearing as to when the second applicant knew about the first applicant’s sexuality[26].
[22] Court Book at 227
[23] ibid.
[24] ibid.
[25] ibid.
[26] ibid.
The Tribunal was not satisfied that the first applicant is homosexual, and gave the following reasons:
·His inability to name any men’s magazines that he claimed to have read;
·The circumstances of the applicants’ marriage, their having had a child together and their continued residence together as husband and wife are not consistent with the first applicant’s alleged homosexuality;
·The photos of the first applicant with the person Anthony, and his explanation for the photographs, which the tribunal found to have been orchestrated;
·The claim by the applicants’ adviser that the first applicant had been a truck driver, although he had claimed to the Department that he was a sex worker;
·The applicants’ adviser’s explanation of 7th August that the paragraph about the first applicant having been a truck driver came from a submission about another applicant; and
·The evidence that the first applicant only placed one advertisement in a newspaper seeking clients as a sex worker.
The Tribunal disregarded the first applicant’s conduct in Australia of:
(a)placing an advertisement in a newspaper; and
(b)Posing for photographs with the sex worker Anthony.
The Tribunal was not satisfied that the applicant engaged in this conduct other than for the purpose of strengthening his claim to be a refugee and therefore disregarded that conduct under s 91R(3) of the Migration Act.
The Tribunal considered the second applicant’s claims, which largely relied on the first applicant’s homosexuality. The Tribunal found that the first applicant is not a homosexual. The Tribunal also rejected the second’s applicant’s evidence on the grounds of its inconsistency, both internally and with the evidence of the first applicant.
The Tribunal was critical of the second applicant’s inconsistent evidence about when she was first sexually harassed:
The Tribunal has found she cannot recall something the Tribunal would expect her to be able to recall if the alleged harassment occurred[27].
[27] Court Book at 229
The Tribunal was not satisfied that harm amounting to persecution had befallen the second applicant in the past and, given that it found that the first applicant is not a homosexual, was not satisfied that there was a real chance that harm for a Convention reason based on her relationship with her husband would befall the second applicant in the reasonably foreseeable future.
The Tribunal was not satisfied that either applicant had a well founded fear of persecution for a Convention reason and affirmed the decision not to grant protection visas to the applicants.
Application for Judicial Review
The applicants commenced proceedings for judicial review on
17th March 2008by filing an application and an affidavit in support. The application included an application for an order that the time for making the application be extended under s 477 of the Migration Act. The Tribunal decision was handed down on 14th August 2007 and the application was not filed at this court until 17th March 2008.
The supporting affidavit gave no explanation for the apparent delay in filing the application, claiming only that the Tribunal did not give the deponent, the first applicant, natural justice, and also breached procedural fairness in deciding the matter.
The first respondent, the Minister for Immigration and Citizenship, has filed a response opposing the orders sought on the basis that no reasonable cause of action is shown.
As to the extension of time, the response had only this to say:
An extension of time is sought as it si state that the applicant received notification of the RRT decision on 4 September 2007. As there is currently insufficient evidence before the First Respondent’s solicitors regarding the date of actual notification, the First Respondent reserves his position in relation to the extension of time.
This seemingly uncontroversial response brought forth a curious document from the applicants, entitled “Response to the Respondent’s Response”, in which the applicants claimed that:
The applicants always have the opportunity to amend their application once they get proper legal advice from an advisor in the pilot scheme. There is no reason why the applicants cannot amend their application.
The document also claimed that the applicants had attempted to file their application by fax on 12th September 2007 and again on
17th September 2007. Whilst they blame the court registry for failing to file their application, they provide no explanation as to why it then took them until 17th March 2008, some 6 months, before they actually filed a hard copy of their application at the registry.
In any event, as the first respondent has not sought to argue that the application is out of time, presumably relying on the decision in Minister for Immigration and Citizenship v SZKKC[28], there seems to be little point in pursuing this point any further.
[28] [2007] FCAFC 105
The applicants filed an amended application on 14th May 2008, in which they set out their grounds of review. Interestingly, the amended application now states that the applicants do not seek an order that the time for making the application be extended under section 477 of the Migration Act. Also, curiously, the applicants no longer claim that they were notified of the Tribunal decision on 4 September 2007, as they had done in their original application. The amended application now claims:
Decision handed down 14 August 2007. Applicant received decision 15 August 2007.
Notwithstanding this rather surprising development, I propose to leave the question of jurisdiction aside.
The applicants grounds of review are:
(1)The Tribunal breached natural justice and procedural fairness.
(2)The Tribunal incorrectly interpreted the definition of homosexuality.
As to the first ground, a breach of natural justice and procedural fairness, the applicants provide these particulars:
My agent wanted to submit further information to the tribunal and respond to its last s 424A letter. Despite several attempts to contact the Tribunal from overseas, the agent received no response. I was deprived of the opportunity to submit scientific evidence of my homosexuality which could have been a central issue of my claim.
As to the second ground, an allegation of an incorrect definition of homosexuality, the applicants claim:
The tribunal failed to take into account the social stigma and homophobia in India to deal with the photographic evidences I have provided.
The applicants did not file a written outline of their submissions.
They both attended court and made oral submissions.
The first applicant embarked on a lengthy exposition of instances in the Tribunal’s Decision Record where he claimed that the Tribunal had misunderstood or misstated his evidence, especially at pages 215, 216 and 217 of the Court Book. He claimed that the Tribunal had not considered his evidence in same manner as he had replied. He also complained that the Tribunal considered him “negatively” in dealing with his answers.
He took issue with the fact that the Tribunal considered some of his answers to be “wrong” and was critical of the fact that the Tribunal asked his wife questions about her pregnancy and the subsequent birth of their child. He claimed this was not “the main issue” and the fact that his wife had become pregnant and given birth to their child was not relevant to his claim. He also submitted that his wife’s answers to the Tribunal’s questions should not affect his credibility.
The first applicant initially denied that he had received any legal advice from a lawyer of the Refugee Review Tribunal legal advice panel but later, in reply to a question from the Bench, conceded that he had attended the chambers of Mr Burwood of counsel.
He went on to complain that the tribunal had asked him questions but did not consider his answers “properly”. He did not provide any transcript of the Tribunal hearing.
As to his second ground, the applicant complained that he wished to provide further evidence to the Tribunal, but the Tribunal would not accept the evidence forwarded by his agent on 14th August 2007.
The first applicant complained that the Tribunal had not replied to his migration agent’s emails.
He also claimed that the Tribunal had wrongly rejected the photographic evidence that had been provided and denied that he had fabricated any story. He told the court that Indian culture is such that when a person gets married one cannot get a divorce.
The second applicant was asked if she would like to make her own submission to the court. She said that whatever questions were asked of her husband and herself, they had given the right answers.
For the first respondent, Ms McWilliam of counsel submitted that there was no failure to accord natural justice, which is governed by Part 7, Division 4 of the Migration Act.
The Tribunal considered that it had allowed a reasonable opportunity to supply further evidence. It had allowed until 24th July 2007 to respond to its later s 424A letter and had informed the applicants that, if an extension of time was required, an application must be received by that date. No request for an extension was made within that time.
The Tribunal had acted entirely in accordance with s 424C of the Migration Act.
Ms McWilliam submitted that the Tribunal had provided procedural fairness, inviting the applicants to two hearings. The applicants were made aware of the inconsistencies in their evidence and invited to comment on those matters.
Ms McWilliam submitted, in respect of the second ground, that there was nothing to suggest that the Tribunal incorrectly interpreted the definition of homosexuality, rather, it failed to accept that the applicants were telling the truth.
Turning to the applicants’ oral submissions, Ms McWilliam told the court that the applicants were seeking to challenge the factual findings of the Tribunal and were essentially seeking to explain and re-agitate their factual claims.
As to the first applicant’s claim that the Tribunal considered each of their answers negatively, if this is a complaint of bias, there is no evidence of it. Bad faith must be clearly alleged and distinctly proved (see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs[29] ).
[29] (2002) 194 ALR 749; [2002] FCAFC 361 at [43]-[44]
Conclusions
The applicants’ first ground alleges a denial of natural justice and procedural fairness. Part 7, Division 4 of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals (see Migration Act, s 422B). There is no availability for common law natural justice to be argued (see Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat[30]; SZCIJ v Minister for Immigration & Multicultural Affairs[31]).
[30] (2006) 151 FCR 214; [2006] FCAFC 61
[31] [2006] FCAFC 62
The Tribunal wrote to the applicants and invited them to attend not one but two hearings. It invited them to attend in a way that complied with s 425A of the Act, by giving a notice in accordance w s 441A and giving that was at least the prescribed period. The Tribunal provided the applicants with an interpreter and gave them the opportunity to give evidence. There were no new or unexpected issues of which the applicants could not reasonably have been aware. The Tribunal complied with s 425 of the Act.
The Tribunal wrote to the applicants on 19th June 2007, putting information to them, explaining its relevance, and inviting them to comment on that information. These letters complied with s 424A(1) of the Act. The letters asked the applicants to comment in writing by
3rd July 2007. They failed to do so.
The letter to the first applicant also sought additional information form him under the provisions of s 424 of the Act, again by 3rd July 2007.
He failed to provide that information.
Each letter told the applicants that if the Tribunal did not receive any comments within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain their views[32].
[32] See Court Book at 174 and 180.
The Tribunal wrote to the first applicant on 10th July 2007, inviting him to comment on other information in accordance with the provisions of section 424A(1), this time by 24th July 2007. Again, he failed to do so.
Subsection 424C(1) of the Migration Act makes it clear that if a person is invited under s 424 to give additional information and does not give the information before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action to obtain the additional information.
Similarly, subsection 424C(2) makes it clear that if a person is invited under s 424A to comment on or respond to information and does not comment or respond before the time to do so has passed, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
In each case, the applicants failed to:
(a)provide additional information under s 424;
(b)comment or respond to information under s 424A; or
(c)seek an extension of time to do so
before the time set by the Tribunal to do so had expired.
It follows that the Tribunal entirely within its rights not to allow any further time to provide additional comments or information under
s 424C.
The applicants’ migration agent did not send any submission to the Tribunal until 7th August 2007, well outside the time set by the Tribunal for reply. It would have been open to the Tribunal not to consider the information, however the Tribunal chose to consider that submission. The Tribunal Member recalled the Decision Record and provided an amended decision, which was handed down on the morning of
14th August 2007.
The applicants’ migration agent sent an email to the Tribunal, attempting to make a further submission, on the afternoon of the
14th August. That was too late. The decision had been handed down. The Tribunal was functus officio. I would comment in passing that the submission by the migration agent that the Tribunal should cancel a decision that had been handed down demonstrates a lamentable lack of knowledge of the Migration Act and the operation of the Refugee Review Tribunal, which does not show the applicants’ migration agent in a good light.
The applicants were given two different times to comment or provide information in the s 424 and s 424A letters sent by the Tribunal.
The deadlines were 3rd July and 24th July 2007. The fact that the applicants’ migration agent sent no communication to the Tribunal until 7th August appears to be dilatory if not negligent behaviour on the part of the migration agent. I consider that a copy of this decision should be forwarded to the Migration Agents Registration Authority.
There is no breach of natural justice or procedural fairness. Ground 1 fails.
The applicants’ second ground complains that the Tribunal incorrectly interpreted the definition of homosexuality. The applicants provide no evidence of that and, indeed, the Tribunal Decision Record indicates that the Tribunal was well aware of the definition of homosexuality. The applicants’ particulars in claiming that the Tribunal failed to take into account the social stigma and homophobia in India to deal with the photographic evidence amounts to no more than an attempt to challenge the factual findings of the Tribunal. It is an attempt at merits review, which is not permissible in proceedings for judicial review.
The plain facts of the matter are that the Tribunal comprehensively rejected the applicants’ claims because it rejected them as witnesses of truth. The Tribunal did not believe their evidence. It is trite law that credibility findings are factual findings which are a matter for the administrative decision maker (re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[33]). The evidence before the Tribunal was sufficient for this finding to be open to the Tribunal.
[33] (2000) 168 ALR 407; [2000] HCA 1 at [67]
The Tribunal rejected the applicants’ photographic evidence because it considered that the photographs had been orchestrated. The similarity between the photographs provided by the applicant and the similarity between the photographs provided to the Tribunal in two cases was put to the applicants at the Tribunal hearing and in the Tribunal’s s 424A letters of 19th June 2007. The Tribunal noted that the same migration agent, Raymond F. Solaimon, had been involved in all three cases.
It may well be that the Principal Member of the Refugee Review Tribunal, if in possession of such evidence, should consider a complaint about the agent to the Migration Agents Registration Authority.
There was evidence upon which it was open to the Tribunal to find that the photographs had been “orchestrated” and give them no weight.
The first applicant’s complaint that the Tribunal considered his answers “negatively” may constitute a complaint of bias or bad faith. There is, quite simply, no evidence of bias, either actual or apprehended.
There is no evidence of bad faith at all. The fact that the Tribunal provided the applicants with two hearings and recalled the decision shortly before it was due to be handed down in order to consider the very late submission of 7th August are strong arguments to show that the Tribunal was not motivated by bias or bad faith.
The applicants are not legally represented, although they have had the benefit of legal advice from a barrister on the RRT legal advice panel.
I doubt that the barrister concerned had any involvement in the preparation of the applicants’ document entitled Response to the Respondent’s Response.
The applicants’ grounds of review have not been made out.
My independent reading of the Tribunal decision does not indicate any jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by s 474(2) of the Migration Act. Consequently, there are no grounds for relief in the way of certiorari, prohibition or mandamus.
The application will be dismissed with costs.
I request that the Registrar of the Federal Magistrates Court forward a copy of this decision to the Migration Agents Registration Authority. The Principal Member of the Refugee Review Tribunal may wish to consider my comments about the Tribunal’s finding that the applicant’s photographs appeared to have been orchestrated.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 10 June 2008
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