SZMDS v Minister for Immigration & Anor - [2008] FMCA 1064

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMDS v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1064

MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Pakistan claiming fear of persecution for reason of his belief and his practice of homosexuality – no reviewable error.

Migration Act 1958 (Cth), ss.424, 424A, 474

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 186 CLR 24 referred to.

Applicant:

SZMDS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 942 of 2008

Judgment of:

Scarlett FM

Hearing date:

8 July 2008

Date of Last Submission:

8 July 2008

Delivered at:

Sydney

Delivered on:

8 July 2008

REPRESENTATION

The Applicant:

In Person

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 942 of 2008

SZMDS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The applicant is a citizen of Pakistan. He has applied to the Court for a review of a decision of the Refugee Review Tribunal that affirmed the decision of a delegate of the Minister not to grant him a protection visa. The applicant seeks a Writ of Certiorari quashing the Tribunal decision, and a Writ of Mandamus compelling the Tribunal to re-hear and

re-determine his case according to law. He claims that the Tribunal has fallen into jurisdictional error and has not given proper consideration to his claims for protection as a refugee in Australia.
The background to this matter is that the applicant arrived in Australia on 3 July 2007. On 16 August 2007 he applied for a Protection (Class XA) visa. In a statement attached to his application he told the department that he wished to apply for a protection visa on the basis of his belief and his practice of homosexuality. He claimed that whilst he was living in the United Arab Emirates and working there between October 2005 and July 2007 he developed an attraction towards same sex people. He described how he entered into a relationship with a young Indian man when they were both in the United Arab Emirates. He claimed to seek protection in Australia because he does not wish to go to Pakistan because homosexuals are discriminated against in society and there are strict laws which would provide for seven years' gaol. He also said that he did not want his wife and children to know that he was homosexual which would ruin their lives if they came to find that out.
A delegate of the Minister considered the application for a visa and handed down a decision refusing the application for a visa on

8 November 2007
. The delegate noted the applicant's claims to fear harm on return to Pakistan but said that the applicant had provided little information to suggest that he was a homosexual, as he had claimed. The delegate was not satisfied that the applicant's claims of homosexuality were credible[1].
[1] See Court Book at pages 96 - 97
After his application for a visa was refused the applicant applied to the Refugee Review Tribunal for a review of the delegate's decision.

The Tribunal received his application at its Sydney office on

3 December 2007
. The applicant, in his application, disclosed that he had a solicitor acting for him. The solicitor's address was to be used as the applicant's address for correspondence. The solicitor is also a registered migration agent.
The Tribunal acknowledged receipt of the application for review on

4 December 2007
, and on 2 January 2008 wrote to the applicant's solicitor in a letter inviting the applicant to attend a hearing before the Tribunal. The hearing was scheduled for 23 January 2008.

On 3 January 2008 the Tribunal wrote another letter to the applicant's solicitor in his capacity as the applicant's authorised recipient. That letter was headed, "Invitation to comment on - respond to information in writing, and invitation to provide information". It would appear from the heading of the letter that the Tribunal intended that letter to comply with the provisions of both s.424 and 424A of the Migration Act.
The letter invited the applicant to comment on or respond to information that the Tribunal considered would, subject to any comments or response that the applicant might make, be the reason or a part of the reason for affirming the decision under review. The letter then set out what that information was and invited the applicant to provide comments or a response by 17 January. The letter also invited the applicant to provide additional information in respect of a letter forwarded to the Department being a report by a Dr Hassan.
The applicant did not attend the hearing on 23 January but the applicant's solicitor contacted the Tribunal to advise the Tribunal that he had been away overseas and had not had any contact with his client. He told the officer of the Tribunal that his casual employee had failed to notify the applicant about the hearing and about the letter under the provisions of ss.424 and 424A. The solicitor asked for another hearing to be scheduled. A copy of the Tribunal's case note confirming that appears at page 134 of the Court Book.
The Tribunal wrote again to the applicant's solicitor on 24 January inviting the applicant to attend a hearing on 31 January 2008.

The applicant's solicitor forwarded a response to hearing invitation indicating that the applicant did wish to attend and also provided some other documents to the Tribunal. One was a letter from Dr Akram Hassan of the Haldon Street Medical Centre. The second was a statement from the applicant making comments in reply to the Tribunal's s.424A letter. A copy of that statement can be found at pages 149 and 150 of the Court Book.
The applicant attended the hearing of the Tribunal on 31 January.

He gave evidence with the assistance of an interpreter in the Urdu language. The Tribunal adjourned the hearing and set a date of 13 February 2008 for the hearing to resume. The applicant attended the resumed hearing on 13 February. The Tribunal handed down its decision on 28 February 2008. A copy of the Tribunal decision record can be found in the Court Book at pages 171-186. In the decision record the Tribunal set out the claims in evidence from the applicant's original application and from the material that the applicant had provided on 30 January 2008 being the medical report and the applicant's statement in response to the Tribunal's s. 424A letter.
The Tribunal also summarised the applicant's evidence to the Tribunal given on 13 February 2008. The Tribunal also considered evidence from other sources being independent country information. A summary of that independent country information can be found at pages 182 and 183 of the Court Book in the Tribunal decision. That independent information came from the United States State Department in a report published in March 2007, and a report from the Canadian Immigration and Refugee Board dated 27 July 2004.
The Tribunal's findings and reasons are set out at pages 183-185 of the Court Book. The Tribunal accepted that the applicant is a national of Pakistan based on his claims to that nationality and the fact that he produced a Pakistani passport in his name to the Tribunal. The Tribunal noted the applicant's claims by saying:
The applicant essentially claims that he is a homosexual and that he is fearful of persecution because homosexuals face discrimination in the society and are penalised under the Pakistani laws and also because he does not want to bring shame upon his family[2].
[2] See Court Book at page 183
The Tribunal did not accept the applicant's claims. The Tribunal set out why it was the Tribunal was not satisfied that the applicant feared persecution on the basis of homosexuality. In particular, the Tribunal fond the applicant's conduct in returning to Pakistan from the United Arab Emirates and, indeed, returning to Pakistan from the United Kingdom in 2006 where he did not seek protection to be inconsistent with his claimed fear of persecution arising as a result of his homosexuality. The Tribunal did not accept that the applicant had engaged in homosexual activities in the United Arab Emirates, or that he was fearful as a result of such activities or as a result of his homosexuality. The Tribunal noted the applicant's claims about his activities in Australia but did not accept that the applicant had engaged in homosexual activities in Australia. The Tribunal did not accept that the applicant would engage in homosexual activities or intercourse in the future, and did not accept that the applicant would face persecution due to his membership of a particular social group being a homosexual, whether actual or perceived.
The Tribunal also noted that the applicant had provided copies of newspaper articles and reports about homosexuality and homosexuality in Islam, but noted that they were not specifically about the applicant and, accordingly, the Tribunal did not view those newspaper reports supporting the applicant's claims. The Tribunal considered the report of Dr Hassan that the applicant had provided but gave that no weight. The Tribunal said:
The Tribunal notes that Dr Hassan's findings are based primarily on the applicant's own evidence. The letterhead on which the report appears contains a spelling error, as does the report itself[3].
[3] See Court Book at page 185
In short, the Tribunal did not accept the applicant's claims to be a homosexual and found that there was no real chance that the applicant would face persecution if he were to return to Pakistan due to that or any other Convention reason. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant commenced proceedings in this Court on 31 March 2008 by filing an application and an affidavit in support. The application contains three grounds: first, the Tribunal has committed a jurisdictional error; second, that the applicant complied with the key elements of being a refugee; that the Tribunal did not attend the evidence that he was in a gay relationship and gave no evidentiary value to his case. The application claims that this was a jurisdictional error. The applicant's third ground claimed the applicants have fulfilled the criterion as required under s.36(2)(b). As such, the refusal is the denial of the natural justice.
The applicant filed an amended application on 3 June 2008. It is as much an outline of submissions as it is an amended application. It sets out the applicant's history in some detail, especially his history in Abu Dhabi in the United Arab Emirates, and his relationship with the Indian man and some difficulties that had occurred with the Indian man's employer. He then went on to refer to factual matters about the applicant having seen a doctor when he was frustrated, angry, depressed and dissatisfied with his life. The applicant claimed in his amended application that the Tribunal did not properly attend his evidence, his circumstances, and especially when the applicant has become a homosexual, that he cannot survive in Pakistan because there are severe punishments there.
The applicant claimed that he could not live a life in countries like India or Pakistan, or anywhere else where homosexuality is deemed to be a very shameful act. The applicant claimed that the Tribunal were dependent upon the reports being independent country information, which were not reliable in their real meaning and/or not worth trust as many of those reports had no bearing on the case of the applicant in any matter. The applicant claimed that the Tribunal's decision was full of doubts and contradictions, and the questions asked of him, presumably at the hearing, were not of the persecution and harassments, but were mostly as per the circumstances, and they were of a general nature. The applicant complained that his real danger was not taken into consideration.
The Minister's solicitors have distilled three grounds from the amended application. I put those to the applicant. They are:
(1)The RRT did not consider the severe penalties the applicant will face as a homosexual in Pakistan.
(2)The RRT erred in using unreliable country information.
(3)The RRT failed to consider the dangers of the applicant if he returned to his home country.
I put those grounds to the applicant at hearing and asked him if they represented a fair summary of his case as set out in his amended application. He agreed that they did. He told the Court that in Pakistan he has a huge family, a number of brothers and sisters. He said that his own family's lives would be destroyed because of him if he were to return to Pakistan because the members of his family would suffer from great shame because of his homosexuality.
In considering the Tribunal's decision it is clear that this is a matter where the Tribunal has made findings about the credibility of the applicant's claims. The fact is that the Tribunal did not accept that the applicant was or had been a homosexual, and did not accept that the applicant would suffer persecution or discrimination if he were to return to Pakistan on the basis of being a homosexual. The Tribunal did not accept the truth of the applicant's claims. It is well established that it is the Tribunal that is the fact-finding body. It is well established that it is for the Tribunal to assess the credibility of the applicant, or any other witness and, indeed, assessing credibility of a witness is a task specifically belonging to the Tribunal.
Provided that there is evidence upon which the Tribunal's findings are open to it, it is not the case that a Court conducting judicial review can interfere. It is well established by such decisions as Wu Shan Liang that it is not for the Court to undertake a review or a re-hearing of the merits of the applicant's factual claims. The task of the Court is to ascertain whether the Tribunal's decision is affected by jurisdictional error. It is not the task of the Court to engage in what is known as merits review.
I will deal with the applicant's grounds both in the original application and those grounds distilled from his amended application. In his original application the applicant claims that the Tribunal committed a gross violation of jurisdictional error, coupled with legal errors, by reaching the decision under the review application. There are no particulars of that ground and it is nothing more than a bare assertion the Tribunal has fallen into error. The second ground claims that the applicant completed all four key elements of being a refugee and the applicant submitted evidence that the applicant had a well-founded fear of life in his country of origin.
For some reason the grounds in the application are set out in such a way that they refer to the applicant in the plural, but there is only one applicant. The second ground claims that the Tribunal did not attend the applicant's evidence that he was in a gay relationship, and gave no evidentiary value to his case which is claimed to be a jurisdictional error. The ground is, in fact, an attempt at merits review. It is a challenge to the Tribunal's factual findings and it is well established that merits review is not permissible in these cases. I am referred by the Minister's lawyers to the decisions in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10], and also Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 186 CLR 24 at 40-42.
The third ground in the original application claims that the refusal of a visa is a denial of natural justice because the applicant does meet the criterion under s.36(2)(b) of the Migration Act. In essence, this is a re-statement of the applicant's claims to be a refugee. There is no particularisation of a denial of natural justice and no evidence of it.
Dealing with the grounds taken from the amended application, the first ground is that the Tribunal did not consider the severe penalties that the applicant would face as a homosexual in Pakistan. This is a claim that the Tribunal did not consider evidence on certain parts of the applicant's claims, but it must be seen in the context of the Tribunal had rejected the applicant's evidence to be a homosexual at all.

The Tribunal rejected the applicant's claims that he engaged in a homosexual relationship in the United Arab Emirates, and rejected the applicant's claims to have engaged in homosexual behaviour in Australia.
In view of the Tribunal's rejection of the applicant's overall claim to be a homosexual, there was clearly no need for the Tribunal to give any consideration to the penalties faced by homosexuals in Pakistan because the Tribunal did not accept that the applicant was one. In my view, there was evidence before the Tribunal upon which it was open to the Tribunal to make the finding that it did. That ground must fail.
The second ground claims that the Tribunal fell into error by using unreliable country information. Under s.424 of the Act the Tribunal may, when it is conducting its review, get any information that it considers relevant. It is well established that the Tribunal may refer to independent country information and this has been affirmed in the decision of NAHI and Minister for Immigration and Multicultural and Indigenous Affairs to which I have previously referred. The Court held at [11]:
There can be no objection in principle to the Tribunal relying on country information. The question of accuracy of the country information is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of country information it would be engaging in merits review.
Quite clearly this ground fails.
The third ground claims that the Tribunal failed to consider the danger to the applicant if he were to return to his home country. The Tribunal did consider the likelihood of the applicant facing persecution in the reasonably foreseeable future, or at the time of the hearing, if he returned to Pakistan. Because the Tribunal considered that the applicant had not engaged in any homosexual activity since he had been to high school when living in Pakistan, the Tribunal found that this did not indicate any desire to engage in homosexual activities with other men[4]. The Tribunal did not accept that the applicant would engage in homosexual activities in the future and, in fact, did not accept that he was a homosexual. Accordingly, there was no requirement on the Tribunal to consider what dangers the applicant would face if he were to return to Pakistan because it did not accept that he would engage in homosexual activities that would attract any adverse attention to him. That ground must fail.
[4] See Court Book at page 184
The applicant is not legally represented. I have read through the Tribunal decision and the supporting material. The Tribunal invited the applicant to attend the hearing under the provisions of s.425.

The Tribunal wrote to the applicant in a letter under the provisions of both s.424 and 424A seeking further information and seeking the applicant’s comments on information it had. Because the applicant's solicitor was away the applicant missed the hearing and did not get the comments into the Tribunal at the time required. However, the applicant's solicitor explained all this to the Tribunal and the Tribunal scheduled a new hearing which the applicant attended. Indeed, the hearing was adjourned until another date so that it could be completed. The applicant's solicitor forwarded to the Tribunal a statement by the applicant and a copy of a report from Dr Hassan in answer to the Tribunal's letter under s.424 and 424A. The Tribunal considered this material.

It is clear from the delegate's decision that the credibility of the applicant's claim to have engaged in homosexual activity in the past and to fear persecution in Pakistan upon his return because of homosexuality was a major issue. Indeed, it was, in effect, the issue.

It was that same issue that was dealt with by the Tribunal.

The applicant would certainly have been under notice that the credibility of his claims to fear persecution in Pakistan on the basis of his homosexuality would be the central issue. There is no breach of procedural fairness. There is no breach of s.425 of the Migration Act. There appears to me to be no breaches of either s.424 or 424A.
I am satisfied there is no jurisdictional error. In the absence of jurisdictional error the Tribunal decision's privative clause decision is defined in sub-s.474(2) of the Act. Under sub-s.474(1) a privative clause decision is final and conclusive and is not subject to orders in the nature of Certiorari or Mandamus which the applicant claims. It follows that the application will be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A.Coutman

Date: 28 July 2008