SZNXZ v Minister for Immigration
[2010] FMCA 117
•22 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNXZ v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 117 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal’s decision was affected by bias – whether the Refugee Review Tribunal failed to consider the Applicant’s claims – whether the Refugee Review Tribunal failed to consider the Applicant’s documents. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(3); 91S; 474; pt.8 div.2 |
| SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZNXZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2312 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 22 February 2010 |
| Date of Last Submission: | 22 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2010 |
REPRESENTATION
| Applicant in person assisted by a Punjabi interpreter |
| Counsel for the Respondent: | Mr P. Reynolds |
| Solicitors for the Respondent: | Ms J. Dinihan, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2312 of 2009
| SZNXZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 September 2009 and handed down on 3 September 2009.
The applicant claims to be a citizen of India, homosexual and a member of a Sikh family (“the Applicant”).
The Applicant arrived in Australia on 18 April 2008 having departed legally from Delhi on a passport issued in his own name and a subclass TU 571 (Student) visa issued on 13 May 2008.
On 8 December 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 3 March 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 31 March 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 3 September 2009, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 22 September 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution by his father and discrimination in India by reason of his homosexuality.
The Applicant claimed that in 2004/5, whilst studying year 9 in India, his English tutor made sexual advances towards him. The Applicant claimed that they had sex for the first time in August 2004 and from then on pursued a sexual relationship “on and off” with his tutor until the Applicant left for Australia.
The Applicant claimed that from August 2005 until May 2006 he would meet with his tutor for an hour five to six days a week.
The Applicant claimed his father disapproved of his homosexuality and when it came to his attention he threatened to kill the Applicant if his tutor came to his house again. The Applicant claimed he moved into his sister’s house for one year, during which time he continued to see his tutor in secret as his lover.
The Applicant claimed that, after he completed year 12 in June 2007, he told his family that he was no longer interested in homosexual relations. This resulted in his return to the family home.
In 2007, the Applicant asked his father to send him overseas for study, as a result of which, the Applicant came to Australia in April 2008 with his father.
The Applicant claimed that, in November 2008, he had his hair cut for his first time in his life, as a result of which, his father beat him. The Applicant’s father returned to India on 6 December 2008.
The Delegate’s decision
On 26 February 2009, the Applicant attended an interview with the Delegate.
On 9 March 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Tribunal did not accept that the Applicant had a homosexual relationship with his tutor and was not satisfied that he was a homosexual.
The Tribunal’s review and decision
On 31 March 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further documents in support of his review application.
On 14 April 2009, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 3 June 2009 to give oral evidence and present arguments.
On 3 June 2009, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“THE TRIBUNAL’S DECISION
The Tribunal’s reasons appear at [108]-[122] of its decision.
It accepted that homosexuals within the Sikh community exist and some face considerable hardship as a result of their sexual orientation. However, the Tribunal did not consider the Applicant’s claims to have had a homosexual relationship in India plausible, as a consequence of the following ([111]):
it was difficult to believe that, if the Applicant’s father had discovered that his child had been sexually exploited by an adult tutor at the age of 14 and was furious about this, he would have done nothing to prevent the abuse continuing such as by reporting the tutor to the police ([112]);
the Applicant made a recent claim as to his tutor having fled following a confrontation with his father, but this was inconsistent with his earlier claim that his tutor had never stopped working as a tutor and had continued to work at the same address to date. The shifting nature of the evidence suggested that the Applicant was not recalling an actual event ([113]);
the Applicant showed that he had communicated by telephone with someone called Hardeep and claimed that this was his tutor’s nickname (whose name was Manjeet). He further claimed that a nickname was used to conceal his tutor’s identity. However, the evidence available indicated that he lived with one other person, who was aware that he had claimed to have been in a relationship with Manjeet. This cast doubt on his claims ([115]), as did the fact that he had not previously referred to the nickname ([116]);
it was not plausible that the applicant could have continued to meet his tutor almost daily after his father had found out about their relationship, as claimed by the Applicant ([117]).
The Applicant did not claim to have been in a sexual relationship with anyone else in India and the Tribunal accordingly did not accept that the Applicant had such a relationship with anyone else ([118]).
The Tribunal did not accept that the Applicant was a homosexual. The Applicant did not claim to have had such a relationship with anyone in Australia and there was no evidence from any member of the gay community corroborating this claim. The only evidence was a letter from a heterosexual roommate stating that the Applicant had told him that he was homosexual and the Tribunal gave this little weight because the Applicant was the source of the information. The Tribunal disregarded the Applicant’s membership of the Colombian Hotel pursuant to section 91R(3) as it was satisfied that the Applicant obtained membership for the sole purpose of strengthening his claims ([119]).
Given its finding that the Applicant was being untruthful in relation to his sexual relationship in India, it also rejected the suggestion that the Applicant’s family perceived him as a homosexual ([120]).
It accepted that the Applicant might have had a disagreement with his father about cutting his hair and becoming ‘westernised’ in his appearance after his arrival in Australia. This was not unusual, but it did not accept that his father had assaulted him or that the Applicant had a well founded fear of harm amounting to persecution from his father, family or Sikh community as a consequence because the Applicant had not been truthful about so many other matters ([121]).”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Punjabi interpreter.
On 16 October 2009, the Applicant attended a directions hearing before me and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. The Applicant was referred to the Court’s legal advice scheme for free legal advice. The Applicant confirmed that he has participated in the Court’s legal advice scheme.
At the commencement of the hearing, the Applicant confirmed that he had filed no amended application, evidence or submissions in support or his application. He confirmed that he relied on the grounds contained in the application filed on 22 September 2009. Those grounds are as follows:
“1. The Tribunal erred in law amounting to jurisdictional error for its failure to believe that I am a homosexual. The Tribunal failed to consider me as a credible witness. The Tribunal found “The Tribunal is not satisfied that the applicant’s explanations are truthful, in part because of the Tribunal’s concerns about his credibility referred to above, because this was the first occasion on which the applicant had ever referred to any affectionate name by either party.” The Tribunal failed to consider my relationship with Manjeet Singh and the persecution I experienced for my relationship with him. The Tribunal is biased to make the decision of refusing my claim on the grounds of homosexuality.
2. The Tribunal exceeded its jurisdiction or failed to exercise its jurisdiction for its failure to accept the documents I have provided to the Tribunal as proof of my relationship. The Tribunal has failed to consider the e-mails and telephone contacts with Manjeet, the letter from Mr Anterpreet Singh and my membership of the Colombia hotel in Darlinghurst as proof of my homosexual relationship. The Tribunal erred in law to find that “As he does not calim (sic) to have had a sexual relationship with anyone else in India, for these reasons the Tribunal does not consider plausible, and does not accept, the applicant’s claim that he as (sic) a homosexual relationship with an individual in India.” The Tribunal ignored my evidences I have provided while the decision was made and made errors of jurisdiction.
3. The Tribunal found “the homosexuals within Sikh community in India exist and some face considerable hardship because of their sexual orientation.” The Tribunal failed to consider that I shall face harm amounting to persecution on my return back to India. The Tribunal failed to those matters at the time of decision and made error of jurisdiction.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally.
Ground 1
At the heart of ground 1, is a complaint by the Applicant of his disagreement with the adverse findings of the Tribunal. When the Court asked the Applicant what he was intending to say in ground 1 he responded that he loved his tutor and that he did not know why the Tribunal had found against him. He said that he had answered truthfully all the Tribunal’s questions. The Applicant conceded that the only reason he alleged bias on the part of the Tribunal was because he disagreed with the Tribunal’s findings and conclusions. Plainly, such a complaint, by itself, does not establish either bias or jurisdictional error.
The mere fact that a Tribunal makes adverse findings in respect of an applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).
To the extent that ground 1 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. As stated above, the Applicant was directed on 16 October 2009 to file and serve any affidavit containing additional evidence to be relied upon, including any transcript of the hearing. No such evidence was filed by the Applicant. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]). A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]). Accordingly, the allegation of bias or apprehended bias is rejected.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal explored with the Applicant in some detail his claims of a homosexual relationship with his tutor in India. The Tribunal put to the Applicant matters of concern it had about his evidence and noted his responses, both at the hearing and again in writing post-hearing.
Ultimately, the Tribunal was not satisfied that the Applicant had ever had a homosexual relationship with his tutor in India as alleged. The Tribunal found the Applicant’s evidence to be inconsistent, casting considerable doubt on the plausibility of his claims. The Tribunal also noted new claims made by the Applicant for the first time at the Tribunal hearing, which the Tribunal found affected further the Applicant’s credibility. For example, the Tribunal found that the Applicant’s account of the frequency of his alleged contact with his tutor “evolved during the hearing”.
The Tribunal noted that the Applicant did not claim to have had any other sexual relationship in India. However, the Tribunal considered whether the Applicant is nevertheless a homosexual. The Tribunal found that the Applicant did not provide any evidence in support of his homosexuality, other than a letter from a friend in Australia who stated that the Applicant had told him he is a homosexual. Having regard to the Tribunal’s adverse credibility findings in respect of the Applicant’s claims, the Tribunal gave the statement in the friend’s letter no weight because it relied solely on the Applicant as a source. Otherwise, the Tribunal found that emails allegedly sent from his tutor “were created solely for the purpose of supporting the Applicant’s account”. The Tribunal also rejected the Applicant’s evidence of telephone contact with his tutor since his arrival in Australia because it rejected the Applicant’s explanation as to why the tutor’s name was different on his mobile phone.
Otherwise, the Tribunal rejected the Applicant’s claims of having been beaten by his father after he cut his hair and found that the Applicant is not a homosexual. Moreover, the Tribunal did not accept that members of his family perceived him to be a homosexual and, accordingly, affirmed the decision under review.
The Tribunal’s findings were open to it on the evidence and materials before and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal failed to accept the Applicant’s documents as proof of his relationship with this tutor. The documents referred to in support of this ground are the emails and telephone records allegedly in support of his continuing relationship with his tutor. As referred to above, the Tribunal was not persuaded that they were genuinely from the tutor. Equally, the Tribunal was unpersuaded by the Applicant’s friend’s letter supporting his claim to be a homosexual because the source of that statement was the Applicant. In relation to the Applicant’s claim to be a member of the Columbia Hotel in Darlinghurst as proof of his homosexuality, the Tribunal found that membership of the hotel was not sufficient to establish the Applicant’s homosexuality. The Tribunal found that, in any event, the Applicant had joined the hotel for the sole purpose of strengthening his claims to be a refugee. Accordingly, the Tribunal disregarded that conduct in accordance with s.91R(3) of the Act.
In support of ground 2, the Applicant stated that the Tribunal found that, because the Applicant did not have a sexual relationship with anyone else in India, he was not a homosexual. However, a fair reading of the Tribunal’s decision record does not support the Applicant’s understanding of the Tribunal’s findings. The Tribunal, in rejecting the Applicant’s claims of a homosexual relationship with his tutor, noted that the Applicant did not claim to have had a sexual relationship with anyone else in India. As referred to above in these reasons, the Tribunal went on to consider whether, nevertheless, the Applicant is a homosexual and was not so satisfied.
As stated above, the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave, including its findings in relation to the Applicant’s documents.
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 makes a general unparticularlised assertion that the Tribunal failed to consider that the Applicant would face harm amounting to persecution if he were to return to India. The Applicant made no submissions in support of ground 3, other than to say he would be killed if he returned to India. It is clear from the reasons above, that the Tribunal considered whether the Applicant would face harm or persecution, if he was to return to India, and found the chance remote.
As stated above, the findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for the reasons it gave.
Otherwise, ground 3 does not disclose an error capable of review by this Court.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence, both at the hearing and in writing, and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 22 February 2010
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