SZMNV v Minister for Immigration - [2008] FMCA 1691

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMNV v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1691

MIGRATION – Review of decision of RRT – where applicant did not respond to s.424 letter – where Tribunal declined to give hearing – where applicant criticised first Tribunal hearing – where applicant claimed membership of a particular social group – where application sought merits review.

Migration Act 1958 (Cth), ss.424, 425

SZHVL v Minister for Immigration & Anor [2008] FCA 356
WAGP v Minister for Immigration [2006] FCAFC 103

Applicant:

SZMNV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1885 of 2008

Judgment of:

Raphael FM

Hearing date:

4 December 2008

Date of Last Submission:

4 December 2008

Delivered at:

Sydney

Delivered on:

4 December 2008

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1885 of 2008

SZMNV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants are a husband and wife of Indian nationality who arrived in Australia on 11 December 2006 and who first applied for protection (Class XA) visas on 25 January 2007. That application was refused by a delegate of the Minister on 16 February 2007. The applicants then applied to the Refugee Review Tribunal for a review of that decision. On 18 July 2007 a Tribunal determined to set aside the decision not to grant the visas and substituted a decision that the protection visa applications were not valid and could not be considered. On 12 November 2007 the applicants made fresh applications for class XA visas and those applications were also refused by a delegate. On 27 February 2008 the applicants applied for a review of the second delegate's decision to the Refugee Review Tribunal.
On 3 April 2008 the Tribunal wrote a letter to the female applicant inviting her to comment on or respond to information in writing. Letters such as this are permitted by s.424 of the Migration Act 1958 (the “Act”). The Tribunal received no response to that letter either within the time proposed, 28 April 2008, or at all. The Tribunal determined pursuant to s.424C(1) that as the applicants had not responded to the letter it would make a decision on the review without taking any further action to obtain the additional information. It also determined that it was not required to invite the applicants to appear to give evidence and present arguments because of the provisions of s.425(2)(c). The decision of the Tribunal was signed on 29 May 2008 and handed down on 24 June 2008.
It was the female applicant who had the substantive claim to be a person to whom Australia owed protection obligations. She claimed to belong to a particular social group of lesbians. She claimed that persons within her group were reviled in Indian society and that she had suffered as a result. One of the acts of persecution claimed was that she had been raped by police and she also claimed that she had been beaten up by her husband although he was the co-applicant. The female applicant claimed that she feared she would be persecuted if she returned to India and might be killed under the pretext of honour killing. She told of her relationship with another Indian lady and of the effect of the discovery of that by her parents and her spouse.
The two applicants attended a hearing before the first Tribunal and provided it with evidence. There is now a complaint that the female applicant was unable to express herself properly at this hearing because both the interpreter and the Tribunal member were male. I do not have a copy in the Green Book of the response to the hearing invitation in respect of this first application but I would say in passing that it is always possible for an applicant to indicate to the Tribunal any particular requirements he or she might have with regard to the interview and to the interpreter. More importantly, however, it is not the first Tribunal's decision that is being made the subject of review before this court. There was no hearing before the second Tribunal because the applicants had not responded to the letter. If they had done so and explained then what they are explaining to me now appropriate arrangements could have been made and they would have received the complete hearing that they claim was denied them earlier.
The letter which the Tribunal sent to the applicants is set out in the Court Book commencing at [CB 220] and concluding at [CB 229]. It analyses the claims made by the applicants in their protection visa application and the evidence given at the first Tribunal hearing. It indicates in considerable detail the concerns that the Tribunal has about a series of matters. These include the protection visa claims, other information in the protection visa application forms and information about completing forms, evidence regarding the date of the parties’ marriage, evidence regarding residential addressees in India, evidence regarding the male applicant's employment, evidence regarding the parties' travel outside India prior to arriving Australia, delay in travel to Australia after obtaining a visa, evidence regarding the female applicant's sexual orientation and protection claims, the evidence of the male applicant described as "your spouse's evidence," and photographic evidence. In each case the matters of concern were set out as was a statement detailing why the information was relevant to the review and the consequences of the information being relied on in affirming the decision that was under review.
At [CB 229] the Tribunal notes the fact that the letter was sent to the applicants and that no response was received and that the letter had been sent to a place nominated in the application for review at [CB 230] at [28], the Tribunal explains why it has decided to proceed without providing a hearing under s.425. These are matters entirely within the discretion of the Tribunal and would be difficult to say in these circumstances that the discretion had miscarried even if that was capable of constituting a jurisdictional error in migration matters. The Tribunal then sets out some independent country information which confirms that there is a negative attitude towards homosexuality in India.
In its findings and reasons the Tribunal deals with the matters set out in the s.424 letter and for the reasons expressed concludes that it is unable to accept the female applicant was a witness of truth. It sums up its conclusions at [CB 237] at [67]:
“The Tribunal therefore does not accept that the first named applicant has been or is a lesbian and was involved in same sex relationships in India. The Tribunal does not accept that the first named applicant was publicly ridiculed or humiliated or otherwise harassed in India by her family or her spouse's family or members of her community on account of her homosexuality. The Tribunal does not accept that she was in a same sex relationship with a college room-mate or that she was sexually assaulted by a policeman who was the room-mate's father because of such relationship. The Tribunal also does not accept that the first named applicant was beaten by the applicant spouse after the rape incident. The Tribunal does not accept that the applicant will engage in lesbian relationships or otherwise represent herself as a lesbian if she returns to India. The Tribunal does not accept that she has any well-founded fear of being persecuted by the authorities or members of the community in India including her or her spouse's family on the basis of her homosexuality.”
The Tribunal also considered what it describes as "implied claims on behalf of the applicant spouse." It considered that the claims manifested a suffering of humiliation and harassment by the applicant spouse because he is married to a lesbian and that he would continue to experience such problems if he returned to India.
“Given the Tribunal's findings above in respect to the credibility of the first named applicant, the Tribunal does not accept that the first named applicant has suffered any harm in India amounting to persecution on account of her homosexuality or for any other Convention reason. The Tribunal has not accepted that the first named applicant will suffer any harm amounting to persecution if she returns to India now or in the foreseeable future on account of her homosexuality or for any other Convention reason. The Tribunal therefore does not accept for the same reasons that the applicant spouse has suffered any harm in India amounting to persecution on account of his wife's homosexuality either from the authorities or from his spouse's family or members of the community. The Tribunal also does not accept that he will suffer any harm amounting to persecution if he returns to India now or in the foreseeable future for reasons of his spouse's homosexuality or for any other Convention reason.
On 30 October 2008 the applicants filed an amended application under the Act. In their grounds of application the applicants said that the Tribunal had made a jurisdictional error when it failed to identify the category of the social group from which she came. In the particulars they state that the Tribunal did not accept that the female applicant belonged to the category of social group she describes as being lesbian. The female applicant complains that she had no ability to know which information or documents were used by the Tribunal to form the view about the applicant that she does not belong to the lesbian category and states that she had in fact experienced harm in India and had a fear of being persecuted if she returned. A reading of the Tribunal's decision will clearly show that the Tribunal was aware that the female applicant was claiming that her Convention ground for seeking protection was her membership of the particular social group of homosexuals in India. The whole decision is predicated upon that claim having been made and there is no force in the claim made by the female applicant. Neither can it be said that she did not know what information or documents were used by the Tribunal to form the view it did. Those were clearly explained to her in the s.424 letter to which she did not reply.
The second point made by the female applicant, although it is numbered 3, is that the Tribunal misunderstood the whole case when it formed the view before the hearing adding to this is that the Tribunal did not consider the female applicant's claim with an open mind. The balance of the ground is an explanation by the female applicant as to why she had only revealed her sexual orientation at the Tribunal hearing on 30 May 2007 (the first Tribunal hearing). She then makes some other explanations of what took place at the hearing. The court is unable to deal with these matters because the effect would be to grant the applicant an impermissible merits review. This is not an appeal from the decision of the Tribunal, it is a review of the way in which the Tribunal reached its decision.
The third ground (numbered 4) is a submission by the female applicant that the Tribunal erred in making findings about her well-founded fear and adopted an unduly harsh approach. Particulars of this ground are a claim that the Tribunal misconstrued the real chance test. There are no particulars provided of what the female applicant calls the unduly harsh approach which of course has little to do with the "real chance" test although it could make out a claim for apprehended bias.
In SZHVL v Minister for Immigration & Anor [2008] FCA 356 McKerracher J says at [17],
“As to the allegations of bias in the written submissions, I would not permit this matter to be raised on the appeal. It was not argued in the application for review by the Federal Magistrates Court nor was it included as a ground of appeal in the appeal to this Court. It is clear that an allegation of bias must be distinctly made and proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J. It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. See also SBBF v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ.”
As regard to the Tribunal's misunderstanding of the real chance test the difficulty that the applicants have is in jumping the hurdle found in such authorities as WAGP v Minister for Immigration [2006] FCAFC 103 at [46] per Moore, North and Mansfield JJ that the real chance test only comes into play when there is a genuine doubt in the mind of the Tribunal. In this particular case the Tribunal is in no doubt about its views concerning the veracity of the applicants’ evidence, and thus there would be no reason for it to apply the real chance test at all. The balance of ground 3 relates to questions being asked at the Tribunal hearing which could only refer to the first Tribunal hearing and are therefore irrelevant for the purposes of these proceedings.
Finally, the applicants claim that the Tribunal's decision was made on the basis of unreliable information, but the particulars are that the applicants did not have a chance to see or know what documents were used in making the decision. There is also a claim that the Tribunal selected only adverse information to assess the review decision. It is difficult to make a determination in relation to unreliable information when no particulars of what that information was are provided. There is a suggestion that the Tribunal should have made some more investigations but the court is not told about what part of the female applicant's claims those investigations should have been made. If it was investigations as to the status of homosexuals in India then the Tribunal has information which one might posit would have allowed the Tribunal to provide the applicants with a favourable decision had it accepted that she was one.
The complaint about the documents has already been made and dealt with by me. The claim about selecting only adverse information is again a claim of bias not properly particularised. The Tribunal did not select only adverse information it did what it was obliged to do and that is to put adverse information to the applicant and provide the applicants with an opportunity to explain it away. This was an opportunity that the applicants did not avail themselves of.
Before me today the female applicant said that the Tribunal did not consider her claim properly and repeated that she was scared to express herself and was therefore not given a proper interview by the Tribunal. I am quite satisfied that the Tribunal did consider her claim in a very thorough and sympathetic manner. The inability to express herself before the first Tribunal cannot avail upon a review of a decision of the second Tribunal. For all these reasons the application cannot succeed. I dismiss the application. I order that the Applicants pay the First Respondent’s costs assessed in the sum of $4,250.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: