SZMGK v Minister for Immigration & Anor - [2008] FMCA 1564

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMGK v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1564

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Egypt claiming fear of persecution for reason of his belief and his practice of homosexuality – no reviewable error.

Migration Act 1958 (Cth), ss.366C, 474(2)

NACB v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 235 referred to
Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59, referred to
Minister for Immigration & Multicultural and Indigenous Affairs v Eshetu (1999) 197 CLR 611
Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 followed
Kopalapillai v Minister for Immigration & Multicultural Affairs (1999) 86 FCR 547

Applicant:

SZMGK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1228 of 2008

Judgment of:

Scarlett FM

Hearing date:

11 November 2008

Date of Last Submission:

11 November 2008

Delivered at:

Sydney

Delivered on:

11 November 2008

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondents:

Mr Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5000.00 and I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1228 of 2008

SZMGK

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 Egypt. He brings these proceedings for judicial review of a decision of the Refugee Review Tribunal. The decision was handed down on 24 April 2008. The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant the applicant a Protection Visa.
In his application the applicant seeks the following orders:
a)An order for a writ of certiorari quashing the Tribunal decision;
b)An order for a writ of mandamus compelling the Refugee Review Tribunal to re-determine the application for a visa according to law;
c)A declaration that the Tribunal decision was made in excess of jurisdiction and is null and void.
The applicant relies on two grounds of review. First, that the Tribunal failed to comply with its obligation under s. 366C of the Migration Act to appoint an interpreter for the purpose of communication between the Tribunal and the applicant; second, that the Tribunal decision was irrational, illogical and not based on findings or inferences of facts supported by logical grounds.
The background to this matter is that the applicant arrived in Australia on 6 November 2007. He applied for a Protection (Class XA) visa on 3 December 2007. A delegate of the Minister for Immigration & Citizenship refused the application for a visa on 25 January 2008. The applicant had claimed in his application for a visa that he would be persecuted if he went back to Egypt because of his sexual orientation. Up until the time of application for a visa he had been able to hide this sexual orientation from his family and friends, but he could not tolerate it any longer.
The delegate, when refusing his application considered the applicant's claims in respect of his homosexuality as he had reached a stage in his life where he should settle down, but was unable to do so because he is not interested in getting married to a woman, but to a man, which is something he could not do in Egypt. The delegate considered that claim and said
Again, whilst it may be the case that some persons are harmed or persecuted or even killed in Egypt by family members or fanatic Muslims or the Egyptian authorities for reason of their homosexuality, I do not believe that this applicant is at such risk. Based on the evidence and the circumstances as presented I am not satisfied that the applicant is, or has ever been, a practicing homosexual, and that any stated intention to settle down in a homosexual relationship is mere speculation, and as such is unlikely to draw the attention of Egyptian authorities, fanatic Muslims or shamed family members were he to return to Egypt[1].
[1] See Court Book at page 61
When his application for a protection visa was refused the applicant then applied to the Refugee Review Tribunal for review of the delegate's decision. The Tribunal received his application by post on 14 February 2008. The Tribunal wrote to the applicant on 27 February 2008 and invited him to attend a hearing of the Tribunal on 10 April.
The applicant, with the aid of his migration agent, completed a response to hearing invitation indicating that he wished to attend the hearing and needed the services of an interpreter in the Arabic language and Lebanese dialect.
The applicant attended the hearing on 10 April and gave evidence with the assistance of the interpreter provided. The Tribunal member asked the applicant a number of questions about his claim of homosexuality and asked about his activities in Australia. The Tribunal signed its decision on 14 April 2008 and handed that decision down on 24 April. The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.
In the Tribunal decision record, which can be found in the Court Book at pages 102 to 109, the Tribunal set out the applicant's claims and evidence taken from his application for a protection visa and a summary of his evidence to the Tribunal. In the Tribunal's findings and reasons which can be found at pages 107 to 109 of the Court Book the Tribunal accepted that the applicant is a citizen of Egypt. It noted his claim to be homosexual and fearful that he would be subjected to persecution by his family, the authorities, fundamentalists and society in general if he were to return to Egypt. The Tribunal noted the applicant's claims that he would suffer life threatening harm in Egypt because he is homosexual.
The Tribunal noted in his claim that he belonged to a particular social group for convention purposes, being a homosexual man in Egypt. However, the Tribunal did not accept this claim. The Tribunal said:
The Tribunal is not satisfied that the applicant presented a truthful account of his circumstances and it does not accept as credible his claim that he is homosexual[2].
[2] See Court Book at page 107
The Tribunal noted the applicant's evidence that he had done nothing to express his sexual orientation since he arrived in Australia or during any of his previous visits to this country. The Tribunal noted the applicant's claim that he had refrained from those activities because of language difficulties and he was afraid that his sexual orientation would be exposed to people he knows in Australia, and then his family in Egypt would find out. The Tribunal did not accept this.
The Tribunal formed the view that the applicant had not participated in any activities commonly associated with being gay because he was not homosexual. Whilst the applicant claimed that he attended Oxford Street, Sydney and in Newtown, to observe the gay community the Tribunal found the applicant's knowledge of the gay community to be limited and superficial and did not accept as credible his claim that he was interested in the activities of the gay community in Sydney, or that he in fact visits Oxford Street and Newtown frequently.
The Tribunal went on to find:
The Tribunal finds that the applicant is not homosexual and it does not accept as credible his claim that he is at risk of harm in Egypt by his family, the authorities, fundamentalists or anyone else in society because of his sexual orientation. The Tribunal has formed the view that the applicant fabricated the claim that he is homosexual and related claims to enhance his protection visa application. The Tribunal does not accept as credible the applicant's claim that he has had a homosexual relationship in Egypt for 12 years or that he may be involved in homosexual activities in the reasonably foreseeable future[3].
[3] See Court Book at page 108
The Tribunal found the applicant was not a member of a particular social group, being homosexuals in Egypt, and did not have a well founded fear of persecution in Egypt for a convention reason.
The applicant commenced proceedings in this Court for judicial review on 15 May 2008. In his application he sets out two grounds. The first ground is the claim that the Tribunal failed to comply with s. 366C of the Migration Act to appoint an interpreter for the purposes of communication between the Tribunal and the applicant. Section 366C says:
(1)A person appearing before the Tribunal to give evidence may request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person.
(2)The Tribunal must comply with a request made by a person under subsection (1) unless it considers that the person is sufficiently proficient in English.
(3)If the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in English the Tribunal must appoint an interpreter for the purposes of communication between the Tribunal and the person, even though the person has not made a request under subsection (1).
The particulars of the claim are that the applicant had requested an interpreter who was not an Egyptian national because he was fearful that if he disclosed his homosexual identity to a person from Egypt this would in turn be communicated to persons in his home country. Contrary to the applicant's request the Tribunal appointed an Egyptian interpreter.
The applicant's second ground claims that the decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. Particulars of that claim are that the Tribunal based its finding that the applicant was not a homosexual on it's perception that the applicant lacked interest or involvement in any activity associated with being a gay man, and he did not participate in any activities commonly associated with being gay. There was no reasonable basis for this finding.
The applicant did not file a written outline of submissions but he attended Court and made oral submissions to the Court. He told the Court that he had requested an Arabic interpreter in the Lebanese dialect, but the interpreter was Egyptian. He was concerned that if the person who interpreted the hearing was Egyptian then the news of his homosexuality may get out to people in the community who knew him, and that could eventually get back to his family.
Mr Reynolds of Counsel, who appeared for the Minister, pointed out that the applicant had certainly requested an interpreter in the Arabic language and Lebanese dialect, but had made no claim for the interpreter not to be of Egyptian nationality or origin. Mr Reynolds referred the Court to the applicant's application for a protection visa in which he referred to the need, if he was called for an interview would he need an interpreter, and in answer to "in which language and dialect" put "Arabic - Lebanese". If the applicant was called for an interview at question 10 of the form the question was asked "Are there any factors we will have to take into account such as access for a disabled person", and he answered “no”.
When the applicant applied to the Refugee Review Tribunal he asked for an interpreter, in what language "Arabic", dialect "Lebanese"[4]. In the applicant's response to hearing invitation he indicated he needed an interpreter, language "Arabic", dialect if applicable "Lebanese". There was no notation made in question 2(e) on the response to hearing invitation where there is a question "Do you have any special needs for the hearing" which would have been the appropriate place to indicate that the applicant did not want a person of Egyptian origin as the interpreter. That was left blank[5].
[4] See Court Book at page 64
[5] See Court Book at page 91
I am not satisfied that the Tribunal fell into error by way of a breach of s. 366C of the Migration Act. I am satisfied that the Tribunal provided an interpreter who was able to provide the appropriate interpreting for the applicant so that he could give his evidence to the Tribunal.
As to the applicant's second ground the applicant addressed the Court at some length about his history and about his sexuality and his fears of returning to Egypt and about his activities in Australia. That is, however, a challenge to the Tribunal's factual findings and it is well established that matters of fact are matters for the administrative decision maker. The Court, when conducting judicial review of an administrative decision, does not undertake merits review. So long as there was evidence before the Tribunal upon which findings of fact could be made there is no scope for the Court to intervene and substitute its own view of the facts for the view taken by the Tribunal.
The ground in the application in ground 2 is a claim that the decision was irrational and illogical and not based on findings or inferences of fact supported by logical grounds. It is well established that illogical reasoning of itself is not sufficient to constitute an error of law, let alone jurisdictional error of law. Counsel for the Minister referred the Court to NACB v Minister for Immigration & Multicultural and Indigenous Affairs[6]. Irrational reasoning of itself is not sufficient to constitute jurisdictional error, and I am referred to the decision of Re Minister for Immigration & Multicultural Affairs; ex parte applicant S20/ 2002[7].
[6] [2003] FCAFC 235
[7] (2003) 198 ALR 59
In that decision I note that Gleeson CJ said at 61, [5]:
As was pointed out in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626, to describe reasoning as illogical or unreasonable or irrational may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence it may be necessary to be more precise as to the nature and quality of the error attributed to the decision maker and to identify the legal principle or statutory provision that attracts the suggested consequence.
The decision of the Tribunal was a decision on the applicant's credibility. It is well established that the credibility of the evidence of the party is a matter for the administrative decision maker, in this case the Refugee Review Tribunal (see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[8] ).
[8] (2000) 168 ALR 407; [2000] HCA 1
The Tribunal made findings adverse to the applicant's credit; however those findings, in my view were open to the Tribunal on the evidence before it. As such, because there was evidence upon which the Tribunal could make those findings there is no jurisdictional error (see Kopalapillai v Minister for Immigration & Multicultural Affairs[9]). Counsel for the respondent has also submitted that this ground appears also to be an attempt at merits review.
[9] (1999) 86 FCR 547
In my view neither of the applicant's grounds of review has been made out. I am conscious of the fact that whilst the applicant was originally legally represented, he was not legally represented at the hearing. I have conducted an independent examination of the Tribunal decision and the supporting documents and I am not persuaded that there is any arguable case for 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, under s. 474(1) it is not subject to orders in the nature of certiorari or mandamus or declaration. It follows that the application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicant has been unsuccessful in his claim and it is appropriate for an order for costs to be made. However, whilst the Minister seeks the sum of $5000, which is an amount provided by the rules, the applicant indicates that he does not have the funds to meet that. That is not, of itself, a reason not to make a costs order. It is, however, a matter to be taken into consideration in deciding whether time to pay should be allowed. In my view it is appropriate to make an order for time to pay, and I allow six months.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 24 November 2008