SZNKX v Minister for Immigration - [2009] FMCA 971

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNKX v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 971

MIGRATION – Review of RRT decision – applicant a citizen of Bangladesh who claimed protection on the basis of his homosexuality – where applicant’s partner also before the Tribunal – where Tribunal received an anonymous letter claiming that applicant’s partner was not homosexual – where Tribunal found that since the applicant’s partner was not homosexual, neither was the applicant – whether Tribunal’s treatment of anonymous letter indicated apprehended bias – whether Tribunal overlooked documents submitted by applicant or failed to notify him of information which would be the reason for affirming the decision.

Migration Act 1958, ss.91(3)R, 422B, 424A

WAKS v Minister for Immigration [2006] FCAFC 32
Refugee Review Tribunal, Re; Ex parte H (2001) 179 ALR 425

Applicant:

SZNKX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 835 of 2009

Judgment of:

Raphael FM

Hearing date:

10 September 2009

Date of Last Submission:

10 September 2009

Delivered at:

Sydney

Delivered on:

10 September 2009

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 835 of 2009

SZNKX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh who arrived in Australia in July 2008 as a participant in World Youth Day. On 15 August 2008 he applied for a protection (Class XA) visa. He attended an interview with a delegate of the Minister on 24 October 2008. The Minister’s delegate declined to grant a protection visa and the applicant applied for a review of that decision from the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal and made written submissions to it thereafter. On 13 March 2009 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 16 March 2009.
The applicant’s claim to be a person to whom Australia owed protection obligations arose out of his claim to be a member of the particular social group “homosexuals in Bangladesh”. The applicant provided both the delegate and the Tribunal with documents which told of the history of his sexual experiences both in Bangladesh and in Australia. He spoke of a number of relationships in Bangladesh and of having been introduced to homosexual activity by a person considerably older than himself who had effectively abused him whilst living in his home. The applicant told that he had come to Australia with a homosexual partner and had lived with him in Sydney. It was a fact that the partner had also made a claim for protection on the same basis as this applicant and that the partner’s request for review of the delegate’s refusal was heard by the same Tribunal member. I do not think it is necessary to rehearse the applicant’s history of his homosexual relationships. Suffice to say, they extended from his school days to the present time and involved the original elder person plus two others before the applicant’s current partner.
The Tribunal questioned the applicant about these relationships and the evidence which he had submitted to the Tribunal prior to the hearing. The Tribunal found that there were what it considered to be significant discrepancies in the applicant’s evidence which tended it to the view that it could not be satisfied that the applicant was a homosexual.
During the course of the hearing the Tribunal put to the applicant the existence of what is colloquially known as a “dob-in letter”. This letter had been written to the department by an anonymous person about the applicant’s partner. The letter which was not included in the Court Book but which has been given to me by the Minister’s counsel and agreed to by the applicant, suggests that the partner’s claims are “totally bogus”, that the partner was “a normal men [sic]… he always maintains dear relationship with his parents … he even has a girlfriend…”
The Tribunal bought the existence of this letter to the attention of the applicant and informed the applicant that whilst it would not normally give any weight to anonymous letters this particular letter which cited the partner’s full name, address, date of birth and passport number, appeared to be in a different category and appeared to the Tribunal to come from a person who knew the partner well. The Tribunal explained to the applicant that it might give the letter some weight and if it came to a conclusion that the partner was not a homosexual then this would bear heavily on the applicant’s own claims to be one. The Tribunal provided the applicant with an opportunity to address the matter which he did, following the hearing, by letter.
In its findings and reasons the Tribunal repeated the matters of concern that it had expressed earlier in its decision record and explained why the inconsistencies that it had found caused it to conclude that the applicant was not telling the truth in the claims which he made in support of his application for a protection visa.
The Tribunal did not accept that he applicant was a homosexual nor did it accept that his history of homosexual activity and relationships in Bangladesh was true. The Tribunal did accept that since the applicant and his partner had come to Australia they have held themselves out as homosexuals and had let persons with whom they associated know of this fact and they had from time to time visited homosexual venues in Sydney. But because the Tribunal did not accept that the applicant was homosexual he could not be satisfied that the applicant had engaged in all of that conduct otherwise than for the purpose of strengthening his claim to be a refugee and therefore the Tribunal disregarded that activity in accordance with s.91R(3) of the Migration Act 1958 (the “Act”).
On 9 April 2009 the applicant filed an application with this court seeking judicial review of the Tribunal’s decision. He gave five grounds for alleging that the Tribunal had fallen into jurisdictional error in the manner in which it had come to its conclusions. The first ground was:
·The applicant claims that he was denied procedural fairness at the time of the assessment of his claim.
This ground is not particularised and without particulars the court is unable to provide the applicant with assistance because it would be wrong for the court to try and guess what he meant by it.
The second ground is:
·The Refugee Review Tribunal failed to accord natural justice.
Once again, no particulars are provided. In any event, natural justice in migration matters is limited to the provisions of Division 4 of the Act by virtue of s.422B and the applicant would have to indicate to the court which of the provisions in Division 4 have been infringed. He has not done so.
The third ground is:
·The Refugee Review Tribunal failed to realise the genuine issues of the persecution suffered by the applicant.
I take this to mean that the Tribunal did not accept the applicant’s claims, and if this is what the ground really means, then it is seeking impermissible merits review because a decision upon the credibility of an applicant is one for the Tribunal and not this court.
The fourth ground is:
·A significant jurisdictional error made by the Tribunal by failing to take into account the fact that the appellant belongs to a special social group in Bangladesh.
There is no basis upon which the applicant can make this claim. At [71] of [CB 187] the Tribunal says:
“[71]It is well established that the homosexual members of a particular society may form a “particular social group” for the purposes of the Convention …
[72]I accept that homosexuals in Bangladesh are identifiable by a characteristic or attribute common to all members of the group, namely, their sexual orientation, and that this characteristic or attribute distinguishes the group from society at large in Bangladesh. I accept therefore that homosexuals form a particular social group in Bangladesh for the purposes of the Convention. However, the question remains whether the applicant is a member of this particular social group, as he claims.”
The Tribunal concluded that the applicant did not belong to the particular social group and that was the task it was mandated to undertake.
Finally, the fifth ground of application was:
·The Tribunal did not comply with s.424A of the Migration Act and thus have committed a jurisdictional error.
Although there are no particulars of this claim in the application, there is reference to it in another document entitled Outline of Submissions with which I shall now deal.
The first submission made by the applicant relates to the anonymous fax. The applicant puts most weight upon this claim and in the hearing before me and in the submissions uses the Tribunal’s consideration of the anonymous fax to allege actual or apprehended bias on the part of the tribunal. In WAKS v Minister for Immigration [2006] FCAFC 32 the Full Bench Nicholson, Lander and Siopis JJ said at [30]:
“There is a suggestion in one paragraph of the appellant’s written submissions that the RRT so conducted itself as to lead to the inference of an apprehension of bias: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 328; (2004) 214 ALR 264 at [115] per Allsop J. In that authority it is made clear that what is necessary is that it is shown that the conclusions of the RRT have been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. There is, however, nothing before us or in the decision of the RRT to attract the application of those criteria.”
The High Court in Refugee Review Tribunal, Re; Ex parte H (2001) 179 ALR 425 said at [27]:
“The test for apprehended bias in relation to curial proceedings is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.”
What the applicant submitted in this case was that the very existence of the dob-in letter had clouded the Tribunal’s mind about him so that when the Tribunal commenced the hearing it did so with a fixed view that the applicant was not a homosexual as he had claimed. The applicant prayed in aid of the submission an extract from the Tribunal hearing. He was helpfully very specific about the part of the hearing upon which he relied and, over the objections of the Minister, I agreed to hear the relevant three minutes on the basis that if I felt from that hearing that there was an arguable case the matter would be adjourned so that the Minister’s representative could hear the whole tape and provide his rebuttal at a later time.
The piece of the hearing that was heard was that part of the hearing recorded by the Tribunal at [84] [CB 190]:
“As I put to the applicant, the anonymous message is relevant to whether I accept that he himself is homosexual since he claims to be in a homosexual relationship with his partner and the message cast doubt on whether the partner is homosexual. As I explained to the applicant, I would not normally place much weight on a message from an anonymous informant but I consider it significant that this person is clearly close to the applicant’s partner in that this person knew the applicant’s partner’s passport number and the nature of the claims he had made in support of his application for a protection visa. Accordingly, I give what is said in the message some weight along with other evidence before me.”
The extract above is an accurate recollection of what was said. The Tribunal went on to say that the applicant would be given an opportunity to make representations to the Tribunal about the letter and that the Tribunal would take all these into consideration. There is no suggestion in the part of the Tribunal hearing I heard that the Tribunal has accepted the letter or that the Tribunal had come into the hearing with a fixed view about the applicant. I am satisfied that a fair minded lay observer who was sitting in the Tribunal hearing room at the time would not have considered that this Tribunal had such a view from what passed between it and the applicant. The Tribunal did, in fact, take into consideration the applicant’s response but concluded, for reasons which it gave, that the person who the applicant claimed may have submitted the anonymous letter was unlikely to have done so and, therefore, put some weight on what was there said. The Tribunal, as it had advised the applicant it might do, came to a conclusion that the applicant’s partner was not a homosexual and, therefore, he could not accept the applicant’s history of his homosexual relationship with the partner.
In the written submissions the applicant also refers to the fact that he believes the Tribunal gave no weight to certain documents which the applicant had submitted. Those documents all deal with the situation of homosexuals in Bangladesh. The Tribunal was only likely to give weight to these matters if it was prepared to find the applicant was a homosexual and it would take these into account in deciding whether or not he had a well founded fear of persecution should he return to Bangladesh. As the Tribunal did not make that finding it was not necessary for it to consider those documents in any detail.
The final document in the list was a letter from the applicant’s housemates which attested to the alleged relationship between the applicant and his partner. This is referred to by the Tribunal at [67] and [87] and was clearly taken into account, even if rejected.
Finally, the applicant says that there was a breach of s.424A of the Act. In his written submissions he refers to country information and, of course, there is no breach of s.424A by not referring country information to an applicant for comment (424A(3)(a)). However, there is no doubt, and it is accepted by the Minister, that the “dob-in letter” is a piece of information which would attract the requirements for s.424A unless the Tribunal had given the applicant the benefit of s.424AA. That section is in the following form:
“Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”
It is, clear from the Tribunal’s decision record, [51], that the Tribunal explained to the applicant the matters required under s.424AA and I received confirmation of this fact from the extract of the hearing that the applicant asked me to hear. To my mind, the Tribunal complied appropriately with the subsection and therefore was relieved of acting in accordance with the provisions of s.424A. If the applicant wished to properly make out this claim he would have had to have complied with earlier orders of the court and produced a transcript of the hearing.
For these reasons, I am unable to assist the applicant in making a finding that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $5,500.00.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 1 October 2009