SZNWM v Minister for Immigration and Citizenship

[2010] FCA 210

FEDERAL COURT OF AUSTRALIA

SZNWM v Minister for Immigration and Citizenship [2010] FCA 210 

Citation:		SZNWM v Minister for Immigration and Citizenship [2010] FCA 210
Appeal from:		SZNWM v Minister for Immigration & Anor [2009] FMCA 1259
Parties:		SZNWM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 9 of 2010
Judge:		NORTH J
Date of judgment:		5 March 2010
Date of hearing:	5 March 2010
Date of last submissions:	5 March 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	26
Counsel for the Appellant:	Appeared in person
Counsel for the Respondents:	Mr Reynolds
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 9 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNWM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	5 MARCH 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed;

2.The appellant pay the first respondent’s costs, fixed in the sum of $2700.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 9 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNWM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	5 MARCH 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 18 December 2009.  On that day, the federal magistrate dismissed an application for a review of the decision of the Refugee Review Tribunal (the Tribunal) made on 5 August 2009, affirming a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, not to grant the appellant a protection visa. 

2. The appellant is a citizen of India who resided in Kerala. The appellant claimed a fear of persecution for reason of his political opinion and membership of a particular social group. The Tribunal also considered a claim based on religion.  The appellant’s claim was that he was a homosexual and suffered various incidents of antagonism as a result of his homosexual relationship.

3. The appellant claimed that he had a career in local politics and that the Muslin League in his locality made a public issue of his homosexuality.  He stood as an independent candidate in the local election in 1995 with the support of the Left Democratic Front, a coalition of left-wing parties.  He was unsuccessful in his election. 

4. The appellant described incidents of harm from people in the community based upon their knowledge of his homosexual relationship with his partner, Sabu.  He described a situation in which members of the community had stabbed his uncle, apparently as a result of knowing the appellant’s sexual orientation.  He claimed to have reported the matter to the police but they refused to record the complaint. 

5. The appellant then claimed that he had been summoned to court in relation to an alleged assault on a Muslim League member named Majeed, but the charges were dismissed.  He claimed that he and Sabu decided to leave the area until the antagonism towards him died down.  He claimed that he borrowed money to buy a lorry and that in due course that lorry was stolen, he suggested, by people from Kerala. 

6. He then claimed that many years later, in 2007, he was attacked by people who referred to his homosexuality.  This occurred in Tamil Nadu away from his original place of residence. As a result, he claimed he went to Japan in order to escape the fear of persecution in India. He returned however after five days.  Then in June 2008 he went to Sri Lanka but was expelled after one day.

   THE DECISION OF THE TRIBUNAL

7. The decision of the Tribunal is unusually extensive and thorough.  It records in detail the difficulties which the Tribunal found with the evidence of the appellant.  It is not necessary to describe the entirety of the reasoning of the Tribunal but it is appropriate to indicate some of the issues and responses recorded in that decision.

8. The Tribunal asked the appellant about his commitment to better the lives of homosexuals in India.  The appellant had indicated that this was his reason for standing for political office. The Tribunal found that the appellant had little idea about the laws relating to homosexuality in India, nor had he any understanding of the considerable campaign mounted in India against homophobic laws.  The Tribunal stated at [182]:

   However, looking at his life in the present and throughout the past, the Applicant was unable to articulate in any detailed way what he would like to do to improve the lives of homosexuals; he said little more than that he wanted to make it possible for homosexuals to talk with each other (presumably in public), but he could not recall laws that stigmatise homosexuals and could not recall (because he had never been able to locate in the newspapers he had read) any organisations assisting or defending homosexuals in India, from the time he claimed to have discovered he was homosexual, through the period when he supposedly hoped to turn electoral victory into a starting point for improving gay rights, through the period when he was being hunted down by zealously homophobic elements in the ML and up until the present.  The Applicant’s ignorance in these matters is a relevant issue for the Tribunal, particularly in light of the Applicant’s claim about having stood for public office in the hope of being able to achieve something positive for homosexuals in his constituency, and his implications as to whether the Tribunal can rely on significant parts of his evidence, even the evidence he has presented that goes to his claim to be a homosexual.

9. The Tribunal then examined what it saw as many inconsistencies in the appellant’s case.  It considered the inconsistencies between the written statement made to the Department of Immigration and Citizenship and the information provided in the protection visa application form.  The Tribunal concluded at [189]:

   Out of what happened during this part of hearing, the tribunal formed the very confident impression that the applicant was not only inconsistent in his evidence but also engaged in the business of tailoring his story to deflect or withstand inquiries as they arose, rather than speaking from his own lived experience.

10. In relation to the appellant’s assertion about the social recognition of his homosexual relationship with Sabu, the Tribunal found at [198]:

    The manner in which the Applicant’s evidence on this subject emerged during the hearing leaves the Tribunal with the impression again that he was tailoring his story to the demands and inquiries of the moment rather than speaking from his own lived experience.

11. The Tribunal then concluded at [203]:

    On the basis of the inconsistent evidence as to social awareness and the social impact of the Applicant’s relationship with Sabu, the Tribunal has great difficulty accepting that there was a homosexual relationship between them. 

12. The Tribunal then recorded that the appellant asked the Tribunal to take into account his political career as supporting the likelihood of the existence of such a relationship.  The Tribunal said at [206]:

    When the Tribunal asked the Applicant what he knew about the issues that inspired him to stand for election, such as the laws relevant to the rights of homosexuals, efforts to improve their rights and any networks he might have tried to build in his campaign, for example, with existing organisations, either back in 1995 or through all the years since then, and up to the time of the hearing, the Applicant, as noted, said he knew of no relevant laws, or campaigns or organisations or networks.  The Applicant said he knew of no relevant groups, or organisations or networks because he never saw anything in the newspapers.

13. In the end the Tribunal did not accept that the appellant had ever concerned himself with the rights of homosexuals in India, either publicly or in relation to his own position.  It did not accept that he participated in the local elections as he claimed and therefore it rejected the evidence that there were attacks on the appellant as a result of that activity. 

14. The Tribunal did not accept the evidence that the appellant’s uncle was murdered or that his death was relevant to the case.  The Tribunal accepted that the appellant borrowed money to purchase a lorry but did not accept that it had been stolen, and the Tribunal did not accept that the appellant went to Japan or Sri Lanka in order to avoid persecution in India.  These extracts from the reasoning of the Tribunal demonstrate that the basis of the Tribunal’s decision was a thorough rejection of the appellant as a credible witness.

    THE JUDGMENT OF THE FEDERAL MAGISTRATE

15. On 1 September 2009, the appellant applied to the Federal Magistrates Court for a review of the decision of the Tribunal.  He was not legally represented.  He sought an adjournment of the proceeding in order to provide an amended application to the Court.  The application was rejected on the grounds that the proposed amendments would not have raised any issue which could advance the case of the appellant. 

16. The grounds stated in the application to the Federal Magistrates Court were:

    1.The Decision made by RRT is jurisdictional error

    2.Breach of procedural fairness

    3.        Breach of natural justice

17. The federal magistrate identified the complaints made by the appellant and dealt with them despite the fact that the grounds stated in the application were unparticularised. 

18. First, the federal magistrate considered the appellant’s contention that the standard of interpretation before the Tribunal was inadequate.  The federal magistrate rejected this ground on the basis that it lacked any evidentiary basis.  The federal magistrate considered the appellant’s complaint that the Tribunal had referred to general country information which did not relate to all parts of India.  The federal magistrate pointed out that the essential basis of the Tribunal’s decision was a rejection of the credibility of the appellant himself.  General country information was used to test the appellant’s claim to have been concerned about advancing the rights of homosexuals in India. This was found to have been an appropriate use of country information. 

19. Next, the federal magistrate considered the complaint that the appellant did not know that he was required to produce documentary evidence before the Tribunal.  The federal magistrate rejected this ground on the basis that there was no expectation by the Tribunal that he provide documentary evidence.  Then, the federal magistrate rejected the balance of the complaints made by the appellant on the basis that they impermissibly sought a merits review.  Finally, the federal magistrate dealt with the stated grounds in the written application, rejecting each of them. 

    THE APPEAL

20. On 4 January 2010, the appellant filed a notice of appeal in this Court. The grounds of appeal were stated as follows:

    1.The honourable FM failed to consider the grounds of my application such as error of law made by the Tribunal not giving me the opportunity of the adverse information in the possession of the Tribunal.  The Court below erred in that it ought to have found that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Act.

    (a)The Tribunal made Jurisdictional error by failing to accord procedural fairness to consider that the Applicant is a Christian or that he or any member of his family was involved in any actual or perceived Christian-related activities in India or Australia.

    2.The Tribunal is required to give accurate particulars of adverse information to the Applicant; its failure to do so is a jurisdictional error    SZEEU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

21. The appellant appeared on the appeal and made oral submissions to the Court. He was not legally represented.  He did not seek to support the grounds of appeal stated in the notice of appeal, save perhaps the second sentence of the first ground.  It is clear that this ground seeks merits review, and is not available to the appellant in this Court. 

22. The Court explained to the appellant the limited role which the Court has on a judicial review application.  Nonetheless, the matters raised orally by the appellant largely took issue with the findings of fact by the Tribunal.  The appellant, in effect, contested that the Tribunal had made the wrong decision on the facts in relation to the evidence of his borrowings for the purchase of the lorry. However as submitted by Mr Reynolds, who appeared as counsel for the first respondent, the Tribunal was prepared to accept that the appellant purchased the lorry. It rejected his claim that the lorry had been stolen.

23. The appellant contested some details of the findings in relation to his political career and also some details relating to his relationship with Sabu, namely, the reason why he only had one photograph of him.  He also contended that the Tribunal had misunderstood his evidence about his place of residence.  None of these complaints about the detail of the factual finding undermine the strong findings of the Tribunal rejecting the appellant’s credit. Furthermore, even if these contentions were correct, they would not constitute jurisdictional error. 

24. The appellant also repeated the contention about the standard of interpretation in the Tribunal.  There is no error in the way this issue was dealt with by the federal magistrate. 

25. On a number of occasions the appellant said that his evidence to the tribunal and to the delegate may have been a result of his distressed mental state. It can well be accepted that the proceedings were a stressful experience for the appellant, but there is no evidence which would establish that the appellant was suffering in such a way to have reflected in the result in the Tribunal.  No such ground or challenge was mounted in the Federal Magistrates Court.  It is thus raised on appeal for the first time.  Leave is required for the appellant to raise a matter in those circumstances.  Leave should be refused because the issue would require evidence which was not adduced in the court below. 

26. For these reasons the appeal must be dismissed.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        15 March 2010