SZMNV v Minister for Immigration and Citizenship

[2009] FCA 172

FEDERAL COURT OF AUSTRALIA

SZMNV v Minister for Immigration & Citizenship [2009] FCA 172

Migration Act 1958 (Cth) ss 424A, 424C(2), 425

WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413
Minister for Immigration and Ethnic Affiars v Guo (1997) 191 CLR 559

SZMNV and SZMNW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2008 of 2008

MARSHALL J
27 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2008 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMNV
First Appellant

SZMNW
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	27 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants pay the first respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2008 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMNV
First Appellant

SZMNW
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	27 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants are husband and wife. They are citizens of India. They appeal from a judgment of a Federal Magistrate which dismissed their application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent Minister not to grant the appellants protection visas.

2. The appellant wife claimed to face a real chance of persecution, if returned to India in the reasonably foreseeable future, by reason of her membership of a particular social group of lesbians. The appellant husband’s claims arose out of his marriage to a lesbian which would cause problems for him if returned to India.

   The Tribunal

3. The appellant wife claimed before the Tribunal that:

   ·she was committed to a forced marriage at 14 years of age, although a lesbian;

   ·she was persecuted by police and society, including her family members;

   ·she was raped by a police officer because she had a relationship with a female.

4. The Tribunal sent a detailed letter to the appellant wife in reliance on s 424A of the Migration Act 1958 (Cth) (“the Act”). In the letter the Tribunal gave her clear particulars of information which it considered would be the reason or part of the reason for affirming the decision of the delegate. It invited her to comment on the information or respond to it.

5. The s 424A letter bore the date 3 April 2008 and was sent to the appellant wife by pre-paid post within 3 working days of that date to the last residential address provided by the appellants. The Tribunal received no response to the letter.

6. Section 424C(2) of the Act provides:

   If the applicant:

   (a)is invited under section 424A to comment or respond to information; and

   (b)does not give the comment or response before the time for giving them 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.

   See also s 425(2)(c) and s 425(3).

7. As it was entitled to do, the Tribunal decided the review on the material before it without taking any further action to obtain the appellants’ views on the information and without inviting them to an oral hearing.

8. The Tribunal referred to country information concerning the treatment of gays and lesbians in India, which showed that gays and lesbians suffer widespread discrimination.

9. The Tribunal referred to an earlier Tribunal hearing concerning the appellants’ claims and evidence given to that Tribunal member. It found inconsistencies between the information given in their initial application for protection visas, their evidence to the previous Tribunal and information provided in their subsequent visa applications dealt with by the delegate.

10. At [39] of its decision the Tribunal said:

    …it is highly improbable that the first named applicant would not have been reasonably able to outline her claims relating to her sexual orientation in the initial application if she had in fact experienced harm in India, or had a fear of being persecuted if she returned, on the basis of her sexual orientation.

11. The initial claim referred to being forced into a child marriage rather than the appellant wife’s sexual orientation.

12. The Tribunal found difficulty accepting certain aspects of the appellant wife’s evidence concerning why she did not obtain a divorce until not long before coming to Australia. It doubted the veracity of that evidence. It also found that the appellant husband gave inconsistent evidence about his attitude to his wife’s sexual orientation, divorce and their continuing marriage. It doubted the veracity of his evidence. It also doubted evidence of the appellant wife concerning beatings which she claimed happened to her at the hands of a lover’s father and the appellant husband. Overall, the Tribunal had serious doubts about the truthfulness of the evidence of the appellants concerning the appellant wife’s circumstances in India. It also doubted the genuineness of photographs taken of the appellant wife in engaging in sexual acts with another female and considered that conduct to fall within s 91R(3) of the Act.

13. The Tribunal catalogued a series of concerns it had about the evidence of the appellants and their credibility on a range of issues, including:

    ·the date of the marriage;

    ·residential addresses in India;

    ·employment of the appellant husband;

    ·travel outside India before coming to Australia;

    ·delay in travel to Australia after obtaining a visa.

14. The Tribunal considered what it described as “implied claims on behalf of applicant spouse”. These “implied claims”, it was said, arose from the husband appellant’s alleged suffering of humiliation and harassment because he is married to a lesbian. The Tribunal rejected those “implied claims” as it did not accept the husband appellant as a truthful witness.

15. The Tribunal rejected the claims of both appellants to be refugees.

    The Court below

16. Before the Federal Magistrates Court, the appellants claimed that the Tribunal failed to identify the appellant wife’s social group. The Court below observed correctly that the Tribunal’s decision is based on a claim made about the appellant wife being a lesbian.

17. Other matters raised by the appellants invited impermissible merits review and included an unsubstantiated claim of actual bias in the Tribunal and an unparticularised claim of lack of application of the “real chance” test concerning persecution.

18. His Honour referred to WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413 at [46] to support the proposition that the real chance test is only relevant where there is a genuine doubt in the Tribunal’s mind about the claims of an applicant for refugee status. See also Minister for Immigration and Ethnic Affiars v Guo (1997) 191 CLR 559 at 576, quoted at [46] in WAGP.

19. The Federal Magistrate dismissed the application before him.

    The Appeal

20. The appeal ground raises the following matters:

    ·formation of a view before the hearing (bias);

    ·failure to understand the appellants’ fear of harm;

    ·failure to assess the cumulative effects of separate incidents.

21. The last two dot points do not raise any arguable ground of judicial review. The last of them was not raised below. In any event both are incapable of leading to a quashing of the Tribunal’s decision and an allowing of the appeal. The Tribunal understood the claimed harm and examined the alleged effects of it, but it did not believe the claims central to the appellants’ case.

22. The Court below rejected the appellants’ claims of actual bias in the Tribunal. Those claims were unsubstantiated before his Honour and remain unsubstantiated.

    Order

23. The Court will dismiss the appeal with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        27 February 2009

The Second Appellant appeared for himself and the First Appellant.
Counsel for the Respondents:	Ms L Buchanan
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	27 February 2009
Date of Judgment:	27 February 2009